Extension of Security of Tenure Amendment Bill: stakeholders’ consultative meeting, with Deputy Minister of Labour

Meeting report

The Chairperson noted that other Portfolio Committees had been invited to be a part of the meeting.

Ms N Magadla (ANC) was not impressed by the absence of a political principal from SALGA.

Mr P Mnguni (ANC) agreed and noted that the Executive Director cannot answer questions which are political and it would be impossible for her to make certain political concessions in her capacity hence the need for a political principal in the delegation.

SALGA perspectives on the Extension of Security of Tenure Amendment (ESTA) Bill
Ms Lorette Tredoux, SALGA Director: Government and Intergovernmental Relations, spoke to the various amendments and said SALGA supports the changes to these amendments to the Act.

Tenure grants
There is clearly no direct obligation on the municipality, in terms of factors to consider in the grant application. The main criterion used by the Minister in considering an application is whether the development “entails mutual accommodation of the interests of occupiers and owners”. Provision is made that the Minister of Rural Development and Land Reform may provide tenure grants through an agreement with a provincial government or a municipality or a person or body, for development or to provide alternative accommodation, paid to the provincial government of municipality or such person or body to enable it to facilitate, implement or undertake or contract with a third party.

SALGA is concerned that in as much as the Act requires the land owner and the Department to provide alternative accommodation in the event of an eviction, courts increasingly require municipalities to address them on how they will ensure that alternative accommodation is provided for the evictee. The courts deem municipalities to be probation officers without municipalities carrying this responsibility in terms of the Act or being duly appointed as such by the Minister and ESTA is not placing any responsibility on municipalities to provide alternative accommodation. With respect to the tenure grants, SALGA supports the amendment.

Additional rights to occupiers
The right to maintain the dwelling occupied and to erect a tombstone, mark or symbol or perform rites on family graves.

SALGA is in support of this amendment.

Limitation on evictions
Legal representation, mediation and orders with respect to reasonable weather conditions under which order may be carried out.

SALGA is in support of this amendment.

Establishment of Land Rights Management Board
This will facilitate provision of municipal services in consultation with the municipalities concerned.

In SALGA’s view, it is imperative that the Board closely liaises with municipalities and ensures that each relevant municipality plans in its Integrated Development Plan (IDP) and budgeting process for the provision of services where required, and that the tenure grants also cover the delivery of services and that these are secured, before the finalisation of the IDP and budget that provides for the provision of such municipal services. SALGA therefore recommends that the tenure grant should include the provision of services and that this be secured before it is included in the budget and IDP of the municipality. SALGA is in full support of the establishment of a Land Rights Management Board.

Establishment of Land Rights Management Committees
SALGA is of the opinion that the same principles as raised with the provision of services under the Land Management Board should apply to the Management Committee with regard to the identification of land for settlement. Consultation and engagement with the relevant municipality is required to ensure that the IDP supports the use of the land as identified by the Committee for settlement. The servicing of land identified for settlement must form an integral part of the identification process, and it cannot be the sole responsibility of the municipality to fund such services. Therefore the grant should include at least a substantial contribution to the provision of bulk services to areas so identified and needs to be included in the IDP and budget. SALGA supports the establishment of the Land Rights Management Committees.

Talking on the challenges of evictions and the impacts on municipalities, the Extension of Security of Tenure Act (ESTA) applies to: all land other than land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law, or encircled by such a township or townships, but including any land within such a township which has been designated for agricultural purposes in terms of any law; and any land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment, approval, proclamation or recognition.

Currently, there is uncertainty about the application of ESTA in urban areas where land is zoned “Agriculture” and this has raised questions about its inclusion in the law by court judgments. There are serious concerns with the recent court ruling conflating ESTA and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) without expressing which Act is applicable as seen in the case of Odvest vs. Occupiers of Klein Akker farm. Conflation resulted in the municipality being required to provide alternative accommodation where ESTA was argued to be applicable.

This has serious implications for both the planning process of municipalities as well as financial implications. As indicated before, there have been a number of instances where the Magistrates Court, out of own accord, “joined” the municipality in ESTA applications and, without expressly referring to it as a probation officer, required the municipality to not only address them on alternative accommodation, but also ordered municipalities to provide alternative accommodation in ESTA evictions, ignoring the findings of the High Court in Odvest v. Occupiers of Klein Akker farm. This will further entrench this misinterpretation of the Act.

SALGA has liaised with various departments on this to address this aspect, but the matter has not yet been resolved. In a recent engagement with the Board of Sheriffs, they expressed the view that municipalities should be responsible to ensure the removal of the possessions of individuals evicted from premises, as the Sherriff is ordered by the court to hand over possession of the property post an eviction, but that neither the Sherriff nor the applicant for the eviction has an obligation to safeguard the property of the evictee. There is no basis for requiring the municipality to take responsibility in this regard. It is SALGA’s view that similar to the land owner, the evictee also has the right to safeguard his/her possessions.

Consideration as to the process of eviction needs to be given in either the Act or subsequent regulations - in the latter instance both Acts need to provide for such regulations to be issued. Land owners need to take greater responsibility with respect to the evictions. Municipalities can play certain roles to support farm dwellers and victims of evictions by collection of information to anticipate evictions and enable quantification of needs, engagement with communities and partnership with provincial departments to undertake developments and provide alternate accommodation, funded via tenure grants from the Department. Municipalities can also facilitate land availability and can assist in co-ordination of all role players when an eviction is anticipated – this would require close engagements with Land Management Committees once established. There is the need for development of beneficiary selection policies at municipal level, in line with the draft national policy.

Based on current jurisprudence, courts do not discriminate between ESTA and PIE evictions, however, different role players are involved -  based on the Blue Moonlight matter, municipalities might be found wanting if there is discrimination in addressing the plight of PIE evictees vis-a-vis that of ESTA evictees – yet the legislation differs. Municipalities have to plan for alternate accommodation and evictions in the Municipal Housing Sector Plan, but they are dependent on national and provincial departments for finances, which render municipalities vulnerable. The amendments to ESTA must be considered simultaneously to the anticipated proposed amendments to PIE so that there is a coherent and equitable legislative framework for all evictions.

Discussion
Ms N Magadla (ANC) commented that there was an outcry for service delivery by the people. She pointed out that the municipalities must take planning seriously especially as it relates to the IDP.

Mr M Filtane (UDM) appreciated the submission and talked about provision for indigent people and the provision of land for other agricultural purposes. He advised that SALGA considers its budget to ensure its programmes in this area do not run into serious trouble. He also spoke about ESTA evictions and advised that the legal unit of the Department liaises with the courts so that an understanding will be reached on this. On providing accommodation to people not originally planned for, he noted this will increase the burden on municipalities. He asked what mechanism was being used in deciding the fate of potential evictees especially involving farm owners who do not allow inspections to be carried out on their farms.

Mr A Madella (ANC) talked about cases of the informal settlements especially in the Western Cape where the belongings of evictees are thrown on the street and they have to relocate to informal settlements with no access to good water. The municipalities are burdened with providing alternative accommodation to these evictees and in most cases they are not aware of it. It is important to give the municipalities at least two months’ notice before these evictions are carried out so they can have enough time to prepare alternate accommodation for these people. He also condemned the absence of the political principals from SALGA.

Mr P Mnguni (ANC) once again expressed his disappointment at the absence of any political principal from SALGA. He stated that it could be tolerated in usual presentations to Parliament but totally unacceptable for a law making session. Talking about the municipal infrastructural grant, he was of the opinion that the submission made by SALGA was “twisted logic”. He also wanted to know why there was no proper planning for the IDPs. He was disappointed that SALGA had not done enough for the people.

The Chairperson also talked about the absence of the political heads. She asked if the people in the farming communities were being considered by SALGA and what it was doing to empower the people.

Mr E Nchabeleng (ANC) asked SALGA what their policy is with regards to municipal community lands. He noted that sometimes when people were being evicted, they are evicted with their animals. He also spoke about the rights of farm workers and the abuse they suffer. He traced this to the history of South Africa where most land was owned by the whites. He pointed out that the only people who get evicted are black farm workers and most of these people are educationally disadvantaged. He spoke about the discriminations being suffered by farm workers. On the absence of the political leaders from SALGA, he also expressed his disappointment.

Ms Lorette Tredoux in her response stated that SALGA believes that there should be an equal right for everybody and the need for a single piece of legislation which will deal with evictions. She noted that SALGA had met with the Department of Rural Development on a few occasions where the concerns of SALGA were raised with the Department. SALGA believes that the human settlements funds should come to the municipalities since they plan for eviction orders and also for unseen or unplanned alternative accommodation provisions for evictees. This burden of unplanned accommodation to be provided by the municipalities sometimes become too much for the municipalities. This is why SALGA supports the tenure grant amendments.

Deputy Minister of Labour opening comments
Deputy Minister, Phathekile Holomisa,  apologised for the absence of the Minister and Director General who were out of the country on official duty. He also apologised for the absence of the Deputy Director General who was also absent due to official commitments. He stated that that submission of SALGA showed the need for an integrated approach to government. He noted that the Act was formulated to deal with matters relating to people who live on the land of others as a result of work. The idea was to ensure that the court decides each case of eviction and money was supposed to be provided by the Department for the eviction process. Before any eviction was carried out, there was the need to provide alternate accommodation for the evictees either on the farmland or somewhere else within the municipality.  In the case of people who lived on farmland sold to another farmer, the Department of Labour is also expected to provide legal services and means for alternate accommodation. The Act did not envisage that there would be so many cases of evictions. He stated that their submission will be more about the labour rights of the farm workers and what the Department was doing in that regard and how farm workers were being helped by the Department to ensure that they get paid the minimum amount and also to ensure that their living conditions meet set standards on the farms where they live.

Department of Labour on its inspection and enforcement services
Mr David Esau, Provincial Chief Inspector: Department of Labour, said the Department of Labour is responsible for all labour laws governing the employment of employees at workplaces including farms and it conducts farm inspections every year as it considers the farm worker to be within the category of a vulnerable worker. The inspector is required to look into accommodation for farm workers but only with regards to the farm worker paying rent for the accommodation. ESTA issues are not looked into by the inspector. There are however overlaps in general since there are several departments that need to engage farm workers and given the difficulty and cost to transport farm workers, it is prudent for government departments to have joint awareness session periodically in the various provinces.

Mr Esau said that the Minister and Deputy Minister of Labour have been actively involved in the last 12 months in the farm sector in Mpumalanga and the Western Cape respectively through road shows; however the Department of Labour does occasionally struggle to access farms where farmers are obstructive. In such cases, the Department is expected to seek the assistance of AgriSA to gain entry or alternatively to obtain the assistance of the SAPS to gain entry. There are however other legal instruments to deal with this.

The access to farms remains a challenge for inspectors. This is an unacceptable situation in a sector with vulnerable workers. The non-compliance still remains a concern on some of the farms where employers show a total disregard for labour laws. According to Sectoral Determination 13, the definition of “farm worker” means an employee who is employed mainly or wholly in connection with farming activities and includes a domestic worker employed in a home on a farm and a security guard employed in the private security industry. The Department does monitor compliance on farms in South Africa and has in place a Sectoral Determination that regulates the market specifically. It determines specific conditions in the sector outside but not in conflict with the Basic Conditions of Employment Act. The Department of Labour engages employers on accommodation only where the farmer is charging the employee rent. Where this happens, the dwelling must comply with the requirements laid down in the Sectoral Determination. Those essential basic human needs that touch on human dignity of citizens are provided for in the Sectoral Determination.

Sectoral Determination 13 is clear on the impact of the connection between labour and tenure rights and policy constraints. The inspector does not attend to land tenure matters as this falls outside of their scope. Such matters should be referred or addressed during joint road shows between various government departments. It has been found that farm workers lack knowledge on the land tenure matter and there is a need for periodic road shows to address this.

Some of the key findings on farm inspections in the two provinces showed there were incorrect deductions, overtime was not properly captured, the hours of work were not in line with the Sectoral Determination, payslips did not capture everything, accommodation conditions were atrocious and the equipment used did not meet safety standards.

In the Western Cape, 110 Basic Conditions of Employment Act inspections were conducted with a 71% compliance level. 78 complied and 32 did not comply. In Mpumalanga, 791 inspections were carried out with a compliance level was 83% (653 complied and 138 did not comply). The Department of Labour does offer services to workers including farm workers at various centres in the regions. In addition to this, the Department does have vehicles that travel to various areas during the course of the month at set times. Certain aspects of the labour laws fall within the ambit of the Department’s inspectors while other fall within the ambit of the CCMA. The Department does liaise with various bodies engaged in the Agricultural sector at a national or provincial/local level. In the case of the provincial/local level, these engagements are to sort out day to day dynamics that may arise. The Department of Labour recommends the continuous engagement with the farming structures that exist within the province to assist in improving compliance levels and conducting more awareness sessions with all stakeholders on legislation. Government departments must coordinate activities as this will allow farm workers to save money on travelling and will also ensure that farm workers are addressed once on all issues.

Discussion
Mr M Filtane (UDM) appreciated the comments made by the Deputy Minister of Labour and stated there was a need for further engagements with the Department with respect to farm workers and farm owners. He was of the view that any refusal of farm owners to let government officials carry out inspections on the farmland should be classified as a criminal act. Failure by the government to act on this will mean that the government is comfortable with the lawlessness of the farm owners. The farm owners treat farm workers as slaves and it was morally wrong to allow this happen, citing the example of farm workers who have to pay rent to farm owners.

Mr E Nchabeleng (ANC) was of the opinion that farm workers are living in the old South Africa and the only benefit they get from the new South Africa is the social grant they receive though sometimes they are not allowed to get this by the farm owners. He spoke about the labour laws being used by farm owners in firing and evicting farm workers. Some of the cases will be referred to labour inspectors for follow up.

Mr A Madella (ANC) acknowledged that the current administration had done a lot to ensure that farm workers enjoyed rights also but noted that all was not well yet with regards to labour laws and farm workers. He found some contradiction in the submission of the Department with regards to deduction from the farm worker’s wage for accommodation. He spoke about the extreme living conditions of the farm workers and asked what the Department was doing to make the accommodation and living conditions of the farm workers better. He was also disappointed that the 2013 Report of the International Labour Organisation was not mentioned because it dwelt with the living conditions of farm workers.

Ms N Magadla (ANC) appreciated the submission. She talked about illegal deductions for and the living conditions of the accommodation while also pointing out that most times cases between the farm worker and the farm owner are won by the farm owner. She requested the Deputy Minister look into the cases of unhealthy living conditions on the farms in Mpumalanga.

Mr N Matiase (EFF) noted that it was unfortunate that these issues were still being discussed. He called the submission a “citation of horror” because there was nothing new in the submission but tales of how farm workers are being treated as slaves, exploited, and the farm owners are taking the fruits of the labour of these farm workers. He noted there was no political will in the current dispensation or concrete measures put in place to deal with the issues affecting farm workers. The Freedom Charter says South Africa belongs to every South African but the farm workers have to be convinced that the Republic also belongs to them. There are cases of farm owners who inflict bodily harm on farm workers. He asked the Department what plans they had put in place in the short and medium term to address the slave-like work relations between farm owners and farm workers.

Mr K Robertson (DA) talked about the video circulating on social media of two farm owners who forced a black farm worker into a coffin, and condemned the action in its entirety. He wanted clarification on what the minimum wage is for domestic workers and agricultural workers. Commenting on the influx of people from nations across the borders of South Africa who are illegal in South Africa, he noted that these people come in and work illegally on these farms and get very low wages. He asked if there was any working relationship between the South African Police, the Department of Labour and the Department of Home Affairs. He proposed that any farm owner who is caught hiring illegal immigrants should be prosecuted and not just made to pay fines as the case is now. He also proposed that there should be a ring fenced budget which will help in investigating the living conditions of these farm workers.

Mr P Mnguni (ANC) stated there was a lot of confusion and emotionalism on the issues at hand. The Deputy Minister was thanked by him for the background information he gave. Evictions could be allowed under certain conditions and not necessarily due to victimization. An eviction can only be accepted under the order of a court. He raised the non-interaction between the Department and sister agencies. Talking about government inspectors who are supposed to be on the side of the people, he noted that some of these inspectors are bought over by the farm owners resulting in a lack of implementation, partial implementation or even controversial implementation. This has caused despair among the people who have been saying government officials have been bought. The Deputy Minister was also thanked for the good work the Department was doing in the Western Cape and he encouraged them to look at Mpumalanga because there were a lot of non-favourable working conditions on the farms in those regions.

The Chairperson asked for clarification on inspectors being locked out by farm owners when they intend to do their job. She wanted to know if the gates were a general issue or it only happened when inspectors go to carry out their functions. Agreeing with the position of Mr Mnguni, the Chairperson was of the view that these inspectors were not visible in the communities. She spoke about kickbacks being collected by some of these inspectors.  She asked about cases where farm owners make farm workers pay for accommodation for their children on the farms when they reach the age of 18.

In his response, the Deputy Minister said the comments and questions raised by members showed that a lot still needs to be done. He told MPs that progress had being made compared to 22 years ago, but that was not an excuse for whatever issues have being raised. He asked the Committee to give the Department time to go back and prepare responses to some of the matters raised. Speaking on farm owners who treat farm workers in barbaric ways, he was of the view that such people do not deserve to have land because the farm owners will always need the services of farm workers. Speaking on the justice system, he was of the view that the system is skewed in favour of the farm owners because they have better access to funds for legal battles, making them win most of these cases. On inspectors being locked out, he noted this is totally unlawful. Before inspectors go to carry out inspections, notices of inspection are sent out to the farm and if there is no response then there are other measures which are put in place to try to address this. He said the the law states that every employment contract must be on paper with all the conditions clearly spelt out. Talking about land ownership, he stated that communities are the custodian of the land but as long as people still live on these farms then the slave-like conditions are most likely to persist.

Mr Esau replied that farm owners refusing entry to inspectors was a criminal offence punishable by a year in prison. On the question of wages of farm workers and domestic workers, farm workers get a minimum wage of R2 778 while domestic workers get R2 422; therefore a domestic worker on the farm should be deemed as a farm worker not a domestic worker. The Departments of Labour and Home Affairs collaborate in determining the issuance of work permits to immigrants.

Afternoon session
Department of Agriculture, Forestry and Fisheries perspectiv
The Department highlighted the vulnerability of farm workers as a result of many variables, but geographical isolation is a major factor that deprives these workers the opportunity to access government services. Farm workers rely on their employers not only for employment and wages, but for services like schools, housing, electricity, access to medical facilities and transport. The farmers therefore, have extensive control over virtually every aspect of a farm worker's life. This notion places a strain on the fundamental right to decent work. So the National Development Plan identifies the need for investment in access to resources (land, water, education and skills) and poverty alleviation. However, problems facing farm workers still persists.

The Department of Agriculture, Forestry and Fisheries hosted a Vulnerable Workers Summit in 2010 to create a platform for dialogue among key stakeholders, including farm workers themselves. Top of the agenda at the Summit was to bring the plight of these workers to the fore and enable Government to take appropriate strategies to restore their human dignity and empower them. In the main, the resolutions of Summit proposed four thematic areas in addressing the plight of vulnerable workers:
- Social determinants of health;
- Working conditions;
- Security of tenure; and
- Training and empowerment.

As a result of the summit, the Department came to overarching resolutions that the Ministers of Agriculture, Forestry and Fisheries, Labour, Rural Development and Land Reform must:
- amend relevant and applicable legislation to implement the resolutions;
- a moratorium to be placed on privatization of state assets;
- establish a Vulnerable Workers unit at national and provincial levels to work with relevant departments in order to ensure that such units are found at local government level;
- call for establishment of a judicial commission of enquiry into conditions for workers in the Fisheries sector.

Subsequent to the summit, a representative Vulnerable Workers Delivery Forum was established to oversee the entire resolution implementation process. The Delivery Forum comprised of the Directors General of the Departments of Labour, Health, Rural Development and Land Reform and DAFF, Heads of Provincial Departments of Agriculture, presidents of farmer unions and trade unions. This forum has since been in existence and coordinating the resolutions of the vulnerable workers. A decision was taken that the same forum should be expanded and be assigned the responsibility of carrying out the resolutions of the Deputy President dialogues over and above the summit resolutions. The forum was expanded to include government departments both at national and provincial levels, business, labour unions, civil society and farmer unions. DAFF was appointed as the convenor of this forum. It coordinates the consolidation of the reports submitted by different departments for reporting at the forum. The Office of the Deputy President provides oversight.

Three dialogues spearheaded by the Presidency were held on 12 February 2013, 11 May 2013 and 1 November 2014, between farmers and farm workers representatives. The resolution of the 3rd dialogue was to develop a document (Social Compact) to chart a way forward for the sector to “re-imagine the future of agriculture”. The draft social compact document has been developed and consulted with some provinces.

Progress with the Social Compact:
- Health: The Departments of Social Development, Health and Water and Sanitation have reported more services have been made accessible to the workers, such as health care mobile clinics; Emergency First Aid response (EFAR) training for farm workers; registration of social grants; social relief of distress; and farm worker representatives appointed to the Water User Association (WUA) Management Boards to ensure that their interests are addressed.
- Working and living conditions: The 2013 Sectoral Determination introduced by Department of Labour in 2013 made provision for employees to benefit from the Unemployment Insurance Fund (UIF) to enable workers to apply for maternity benefits; annual review of the minimum wage to respond to inflationary pressure; new minimum wage of R105 per day from 1 March 2013; and the Department of Labour is in the process of establishing a provident fund for farm workers and currently the department is engaging National Treasury on the modalities of the scheme.
- Empowerment and training: since the Summit, AgriSeta trains vulnerable workers through skills and learnership programmes such as the Farm Together programme that targets cooperatives (illiterate vulnerable groups); DAFF and DHET’s career awareness programmes targeting rural schools and vulnerable workers; DAFF allocates bursaries to children of vulnerable workers at high school level, and additional  bursaries to pursue undergraduate studies in Agriculture, Forestry and Fisheries study fields.

Department of Human Settlement input on housing assistance to farm residents
Ms Zoleka Sokopo, DHS Chief Director, said DHS developed A National Housing Programme for Housing Assistance for Farm Residents, approved in April 2008, where all housing developments for farm residents off the farms are catered for in the normal township oriented National Housing Programme. The programme was started to provide a mechanism for on-farm housing provision in partnership with farm owners. The farm owner is a vital role player and is seen as the implementing agent. The policy intends to provides access to adequate housing, including basic services and secure tenure. Through the policy the Department developed three options to provide support for farm workers:
- rental housing by the farm owner or a housing institution on the farm for farm workers;
- individual ownership where the land owner is prepared to subdivide and transfer farm portions; and,
- subsidies for beneficiaries of the Labour Tenant Strategy / Programme of DRDLR.
It is important to note that the above options do not infringe on land rights of any of the stakeholders. All stakeholders are involved in planning and implementation, rental arrangements are regulated and disputes can be referred to the Rental Housing Tribunals, it provides for eventualities such as the termination of leases, retirement of workers, sale of the farm, termination of the scheme and the process to deal with a deceased estate, and structured and binding agreements apply in all cases.

With the rental option the farmer provides rental housing on the farm, then an agreement is concluded with MEC and a pre-emptive right is registered. When the MEC approves the project, rentals and rental agreements, then a 60 day rental agreement termination period applies effectively immediately. Funding is provided for water and sanitation services,  storm water management systems and top structures. If owner disposes of the farm, the subsidy is refunded according to the depreciated replacement cost of the units or the new owner may apply for substitution and carry on with existing arrangements. If the owner dies or becomes insolvent, the MEC will have preferential claim against the estate at same value. When working with a housing institution, the farmer may decide to award long term lease or register a servitude on a portion of farm to a housing institution. All farm workers and occupiers may benefit from this option.

With the second option where the farm owner is prepared to subdivide the farm and transfer portions to farm residents, subdivisions must be large enough to enable at least sustainable subsistence farming, and the subdivision must take place within prevailing legislative provisions. On the third option, however, with regards to strategies that are in place for securing housing for victims of farm evictions, DHS has not yet approved any subsidy project on a farm to date.

Department of Cooperative Governance and Traditional Affairs (COGTA) perspective on ESTA Bill
Ms Gigi Gosnell, COGTA Chief Director: Executive Strategic Support, said ESTA was introduced by government to establish a balance between the opposing interests of farmers and farm dwellers. The legislation was not aimed at stopping evictions, but merely to regulate them, ensuring that all evictions were conducted in a legally valid manner, with a court hearing taking into account all relevant sectors.

Section 4 of ESTA provided options for long-term tenure security for farm dwellers to benefit from land redistribution and to acquire land and housing of their own, but that part of the legislation has not been implemented successfully. It seems the Act has disadvantaged those it was supposed to protect as it failed to slow down evictions largely because it required workers to go to court to challenge them because evictions linked to dismissals are permitted. Farm dwellers did not have resources to challenge unfair dismissals and evictions (NDP, Chapter 6). It seems ESTA has failed to restore the land rights of the evicted farm dwellers and protect those facing evictions.

ESTA also failed to provide clear processes to follow in providing alternative accommodation for those evicted. Therefore, government should put measures in place to discourage evictions and should provide farm dwellers with mechanisms to empower them to acquire land to sustain themselves. Furthermore, it is therefore critical that municipalities ensure that communities residing on farms, are included in the Integrated Development Plan to ensure service provision as part of the municipality's responsibility.

Evictions have a huge impact on the local government's limited budget as they are not planned for in advance. There is lack of suitable land for farm dwellers result in mushrooming of informal settlements, which presents its own set of problems such as housing needs, providing basic services, access to health and education facilities, access and proximity to economic and social opportunities; and there is lack of awareness among the farm dwellers about their right to land tenure security.

COGTA can support the evictions of farm dwellers through:
- providing the regulatory framework for ensuring that farm dweller issues (land reform and tenure security) find expression in the IDP and Spatial Development Framework (SDF) processes of municipalities.
- strengthening the coordination of sector departments involvement in eviction processes through the Intergovernmental Relations Framework Act.
- collaboration between COGTA and DRDLR and other stakeholders in ensuring that there is centralised reporting of evictions and improved data collection.
- mobilise relevant sectors and stakeholders responsible for the release of state land and ensure that this land is available to municipalities.

Discussion
Mr E Nchabeleng (ANC) asked what areas bursaries go to across the country, and whether the kids residing on farms will have to go to private schools where they will end up having to pay. Farmers’ children always end up being farmers in most cases, and so what is the role of local municipalities in those areas in grooming children to become good farmers, especially those that have that interest. He stated that people feel government is not doing anything to change or drive land reform, and advised that radical steps need to be taken to address this. Perhaps we should look into the nationalisation of land to redirect it to the people, and especially people with disabilities. He suggested that perhaps next year the Committee should look into coming up with legislation for the nationalisation of mineral rights to make it possible for black people who have an interest in mining, to be given those opportunities. He asked why government should not take back the farms from the people who owe us (the Land Bank) just as the bank repossesses houses when people default in repaying their bonds.

Ms N Magadla (ANC) asked about the assistance provided by the Department of Human Settlements to farm workers and dwellers in getting their own farms, because these people have been living on these farms for their entire lives and have buried their loved ones on that land. She asked for statistics about black people who benefit from commonage.

Mr M Filtane (UDM) stated that the geographical location of farms presents a problem in terms of access for dwellers, and DAFF is not coming up with any solutions right now, except for water tight policies. He asked about allowing farm dwellers one hectare of land so that they have something to live off instead of all this running around. He said that we have spent thousands of rands with a huge support team behind us, only to come back to farm dwellers that are not happy and it seems that the position is not about to change if we continue down this path. DSD tells us about the services to farm dwellers that it is coordinating with other departments. However, are these services being effectively delivered, because local government says that access is a problem? Lastly, he does not want to make an unsavoury remark but under normal circumstances it would make sense to nationalise the land, but given the recent Public Protector’s report on State Capture, one wonders how much more land would be left in the country for our people.

The Chairperson interjected, saying that members need to stick to comments and questions on the presentation. Such remarks will spark an unsavoury debate.

Mr A Madella (ANC) said that he is happy about the interventions that had taken place. Access has been raised before and the report does not provide a sense of whether this has been implemented throughout the country or only in hotspot areas. He asked where the Agri-Seta skills development programme has been implemented in the country, and for an update on the judicial commission of enquiry on the working conditions of people working in the fishery industry.

The Chairperson asked DAFF how it recruits learners from the farming communities and how many have been absorbed by the Department, particularly those that have already been funded.

The DAFF representative said the Department will provide a full written report from SARS that has the numbers of all the learners that have been recruited and funded. Furthermore, the Land Bank does take land as collateral when someone applies for a loan. Therefore, insolvency laws do apply within the agricultural sector as far as the Land Bank is concerned. He advised that attention needs to be directed to the money that has been paid to farmers to provide support to them, because South Africa does not provide enough monetary support for its farmers, whereas at the same time the farming community is expected to produce food that must be affordable and healthy for citizens. So the Department is trying to strike a balance between affordable and healthy produce and food security in the country especially taking into consideration the drought. To deal with this, DAFF had various interactions on the revitalising of agriculture and agro-processing value chains which have been pronounced on by the President in terms of how do we deal with the matters identified, including access to land. The Department of Rural Development and Land Reform (DRDLR) had a lot of interactions about accelerating the process of providing access to land for people, and one of those is the 50/50 policy to ensure that farm workers also have access to land.

He said that the Deputy President, Mr Cyril Ramaphosa, came up with a programme called “Re-imaging the future of agriculture” which would have multiple areas of focus within agriculture. One of these was coming up with the Social Compact which would deal with various matters including the children of farm workers and how they progress in life. It would not be correct for DAFF to want to focus on children of farm workers becoming farm workers. We are aware that as we progress as a country we need to create opportunities for the children and opportunities that are beyond farming. If the Department conducts a root-cause analysis, it will always come back to the four problems which are the working conditions, social determinants of health, security of tenure, and training and empowerment for them, or else we will be engaging in fruitless discussions. What needs to be done is focus on the social compact as a way of getting out of where we are at a conceptual level. DAFF is the overall coordinator and is overlooking the implementation of the programmes, once the social compact has been implemented and signed off by all relevant stakeholders. This will be a step in the right direction because it is a binding agreement that we will have with them.

Another DAFF official said that the Department does not go to the farms to select those learners, it is a bursary scheme that has an application process with requirements. DAFF has signed service level agreements with schools that are nearby the farming communities, and the bursaries have been given to the schools only to learners that meet the requirements and it is specifically indicated in the MOU that the bursary is meant to cater for kids of farm workers, and those that meet the requirements will be afforded the opportunity to study in that particular school. The list of the learners that have benefited throughout the country will be provided to the Committee in due time.

Extension Officers only assist people who have farms and have a farming activity that is active, and those who have their own backyard and are not staying within the farm. They are assisted through a programme called iLima-Letsema and they are assisted with production inputs and farming support activities. In the Western Cape in particular, a list of all farm workers who have been assisted with production input as well as the extension officers from the provincial department in relation to their specific needs will also be furnished in writing to the Committee in due time.

The emphasis of assistance has been on the hot spots, such as Mpumalanga and Western Cape. In other areas DAFF has smaller numbers in terms of assistance that it provides. With regards to the judicial commission of enquiry, as part of the commitment within all the departments, it was given to the Department of Justice and Constitutional Development (DoJ&CD). DAFF, as the coordinating department, will get feedback provided by DoJ&CD in due time.

Mr Filtane asked if these DAFF services actually get to the intended beneficiaries, or is it just something that is still on paper.

The DAFF official responded that the services do get to the intended beneficiaries. A list of learners that have benefited from the interventions and the services given by each department can be furnished, but this information can only be reported by the department that provided those services with more specifics, in terms of who benefited, how and through which services.
 
Department of Human Settlements
The Chairperson said that these are nice stories told by the department, but there is no implementation, and she asked where can the Committee go and see these things happen because the country is so vast. However, the fact that nothing has been implemented yet is very discouraging.

Mr Madella said this seems like a theoretical framework, he asked how does this relate to the agri-village concept that exists in the country. There are a number of them in KZN, and he is aware of the one that is functioning in the Western Cape, in Molteno.

Ms Magadla agreed with the Chairperson that the presentation is good, but one of the qualification requirements is marriage or cohabitation in order to be assisted with housing. How long must people cohabit in order to meet the requirement? She said most of the provinces have difficulty in providing housing, more especially rental housing. It is much more easier and coordinated in the big cities like Johannesburg and Cape Town, but in the small towns it is difficult. She asked what is being done by the DHS to ensure that the provision of housing is made easier in the small towns and rural areas.

Mr Filtane said since the DHS still has the policy, how secure is the tenure as it was said earlier in the presentation that the intention is to secure tenure. What is the object of this tenure, is it the house or the land? The legal principle is that the owner of the land has more rights than whoever has a claim on the improvements. He asked about the conditions of these binding agreements, specifically the critical ones. He asked if it is possible that the reason these deals are not so appetising to land owners is because of the binding agreement, and the Committee would like to know what these are. Does the DHS have provision for registering these conditions in the title deed with the Deeds Office, because that is where one would feel more comfortable in terms of the protection of rights? Does DHS have as part of the negotiation process any provision for the bond holder, like the bank that has offered financial interest in the farm? Whose interests are registered with the Deeds Office? How secure are the interests of all the parties?

The Chairperson asked how the process will unfold when the land owner decides to sell the land. DHS also stated that funding farm workers depends on their earnings. How much must farm dwellers get paid per month if their access to the funding is aligned to what they earn?

A DHS representative replied that a core issue around the programme is that the farm owner is key, because the land is his or hers. Therefore, if the farmer is unwilling to give that portion of land for housing purposes, the programme will fail. It is not about the municipality, nor the province, because the application for subsidy will come through the farm owner who has apportioned the piece of land to farm workers. If there were many agri-villages multiplying we would not be having the problems that are currently being faced, because the process would be smoother and easier. Those people in agri-villages that have been apportioned a piece of land by the farm owner, are the people that can apply for a housing subsidy. DAFF will assist them when it comes to actual farming.

There are temporary structures for when people have been evicted and there are permanent structures which are being built according to the norms and standards of building regulations. The temporary structure is not meant to provide permanent accommodation but to provide immediate relief instead of people staying in halls. At least the temporary structure will provide some safety until a permanent structure is provided. The department has not yet prepared for the temporary structures because it is waiting for the local municipality to secure land on which the permanent structures will be built and located.

With regards to cohabitation, as it is provided by the Department of Home Affairs, people who have been together for a certain period of time (six months) are determined to have been married under customary law.

DHS replied that there is difficulty in providing rental housing. We want to up-scale rental housing to small towns because DHS has observed a need for rental housing even in the small towns. Initially, the main focus was to provide rental housing in the big towns.

The objective of security of tenure and the success of the programme relies on the farm owner providing a piece of land and that is where the security of tenure lies. DHS brings in the house as an addition to ensure that there is security of tenure. DHS does not want to build in a place where those people will not have security of tenure.

On binding agreements, DHS has no experience on whether the binding agreements outlined in the policy are working or not, because of the inability to implement the programme. It might be that on paper it sounds water tight but in practice, some gaps are identified. On the provision of title deeds, DHS has not looked at the bank as a person that holds that title deed on behalf of the owner because the owner owes the bank that piece of farm. However, if the owner is willing to provide the piece of land for residential use – whether the farm is under mortgage or not – it is implied this would have been dealt with already by that stage.

In our assessments, farm workers earn from R1 800 to R3 600. In some areas they are earning a little bit more up to R5 000. The Department of Labour should be able to provide this information in detail. The policy of DRDLR indicates that we are responding to farm workers who have resided on the farm for a very long time. Labour tenants are people who have worked on the farm in exchange for the right to live on that farm. A subsidy is provided for those labour tenants for housing development. It does not mean that we do not provide for other people, some of these people have buried their loved ones on that land. This provision is just for labour tenants, because their situation is different. So it is not that the department is discriminating against those that have lived on the farms for a short period of time.

Mr Filtane asked if DHS did extensive research and did it touch base with the farm owners at all, before the policy was developed.

Mr Nchabeleng said he is very cautious about the agri-villages, there could be a positive aspect to it, depending on where the farm workers are taken. There is potential to disadvantage the people when they are moved from one place to another, but if the houses are built on the farm then that would be greatly beneficial to farm workers.

The DHS representative replied that DHS is referring to the portion of land on a farm that is dedicated for residential houses, and people should also get a portion of land for subsistence farming so that they can be able to sustain themselves. People cannot be placed in the middle of nowhere. However, if DAFF wants to establish agri-villages and requests subsidies for people earning a lesser amount of money, that will be provided.

With regards to research, the policy was approved in 2008. It is possible that the research itself is outdated or that after the policy was approved, there was not enough publicity to ensure that farm owners are aware of the policy. The DHS representative could not provide a straightforward answer when it comes to this one.

The Chairperson said that there should be a joint meeting between DAFF, DHS, and DRDLR. We do not want policy after policy but the strict implementation of these policies.

Cooperative Governance and Traditional Affairs
The Chairperson said that the presentation mentioned that the ward committee must monitor the eviction. She thought the ward committee is supposed to be represented on the Land Rights Management Committee as well. When looking at the Amendment Bill, that committee is the one that will try to mediate the dispute and come up with a resolution. She asked if COGTA thinks the ward committee must be separated from the Land Rights Management Committee to monitor the evictions. 

Mr Nchabeleng said that he is disappointed that SALGA left before their principal (COGTA) presented, as it would have benefited them a lot, in hearing what COGTA had to say and is doing.

Mr Madella said it would be important for the principal to follow up with SALGA. He referred to Point 6 on page three and asked what COGTA suggests as measures to discourage evictions or ban evictions completely. The role of ward committee to monitor evictions, is very important, it is an integral part of the municipality. He shared some concern about the statement about making provision for farm workers that are off the farm. So the IDP will not take them into consideration if they are on the farm, only when they are off the farm?

Mr Filtane said he was happy with Point 6 on page three, but on Point 4 on page eight, whose responsibility should it be to find the land, is it COGTA, DRDLR or the farm workers. In reality the people evicted will be feeling the pinch, and they will be pressurised to find the land. First people on the spot is local government, are municipalities ready, and have you checked countrywide, because evictions are happening countrywide? He asked because they did not get any sense in all the public hearings that the municipalities are ready or there is a known office or help desk to which people go when they are evicted. This question becomes pertinent given the environment in which we live at the moment. The farming community has shrunk by 30% in the last 20 years and the recent drought is not helping at all. People will continue to go to towns because the prediction stipulates that the real effect of the drought will be felt this summer when the stock are gone. What is being done to prepare COGTA for the crowds that will be coming to municipalities? At what stage is COGTA ready to allocate land to these people? For example, in the Umngeni municipality, they said they are sitting with 20 000 people and they have no clue what they will do for those people. Now most of these people are poor, and are being driven off of the farms. Surely local government by now should be saying we already have so much land in the different municipalities. He asked if there are dedicated officials in the Department who are supposed to keep track of evictions in the local municipalities and follow these cases through so that COGTA can start making provision for the people who have been evicted. COGTA suggested that the tenure grant should go to it on page eight.

The Chairperson asked how the municipalities going to ensure that the money is not going to be used for other purposes, because this grant money is specifically intended for those who have been evicted from farms. COGTA suggested that the tenure grant should be paid to the municipality, but the Act prescribes that the money should be paid either to municipality, provincial government or other persons. Do you think if the money is paid to the farmer that is unconstitutional? Processes need to be in place to ensure timeous involvement of municipalities in the aftermath of evictions. So who must ensure that these processes are in place, because the Act is clear who should be involved in putting the processes in place when a person is being evicted? And what committees, especially in rural communities, should look into the needs of the farm dwellers? Farm dwellers must be represented in the ward committee so that the municipalities are aware about the issues taking place in each and every farm. However, if you are saying the ward committees should look, when will the ward committees be established? Up to now, they are not aware of what is happening in the farming communities.  

Ms Gosnell replied that when one comes to the Committee to present to one’s perspective on these issues, the Members are aspirational in their thinking. They do not think about what local government is actually doing right now. Some of these matters need to be looked at by the local government sector. Currently COGTA is seized with stabilising a number of municipalities and the current reality is that we have the Back to Basics programme for local government to ensure that municipalities are able to exercise their responsibilities by providing basic services. Here comes another big societal issue, farm evictions. So they are failing to be able to provide basic services but here comes evictions. There are no rural development help desks. We have Local Economic Development (LED) in some local municipalities. We do not have rural development help desks. When asked what measures must be put in place to prevent farm evictions, we are saying that there is the Premier Coordinating Forum (PCF) through the IGR structures. This can be put on the agenda of the PCF to provide leadership to prevent farm evictions before it becomes a problem for local government. This must be looked at by the District Forums and the Mayor’s Forums especially for distressed farming communities where there are many evictions. We have to start somewhere, if it is not institutionalised now it needs to be.

Farm settlement has become the fall-back even for the DRDLR, because by acquiring land you can have a sustainable solution for all the problems of farm dwellers. About on-farm settlements and the IDP, we were fighting to help them remain on the farms because that is their life and they have lived there for many years, and for them to be evicted has been a frustrating process. We rely on the generosity and humanity of the land owners, because of the laws of the land, it is difficult to implement thin in on-farm settlements. Hence it is easier for Human Settlements, Department of Education and local government to build schools where the farms are because it is land owned by the state or the people themselves. However, it does not preclude the people on farms to be integrated into the IDP but the reality of the situation is that they are not fully represented in those IDP processes, even in the Community Work Programme (CWP).

With the tenure grant, when we looked at the Amendment Bill there is a provision that the Minister may grant or request the province or municipality or entity or even a farm owner to facilitate development. Hence, we said should not the municipality proactively look at developments for groups of families that have been evicted. They can go to the Minister through the Bill (if passed) and surely they can access that. Currently with the budget of municipalities, they have a lot of responsibilities and sometimes they use grants to pay for salaries and so on. Perhaps, if the tenure grant is approved it can be a conditional grant as well, because it is a development facilitation grant.

Local government should be part of this from the beginning in terms of the monitoring of farm evictions. They should not find out only when 20 families are about to be evicted through a court order for example. If the local government is not aware of this from the beginning in terms of the eviction process, it will be difficult to plan accordingly in order to mitigate the problem and intervene. At the ward level, it should be compulsory for them to be part of the Land Rights Management Committee as then monitoring is much easier and for the ward committee to inform the municipality about a pending eviction that is going to happen.

The Chairperson declared the meeting adjourned.