Extension of Security of Tenure Amendment Bill: SAPS briefing; Response to submissions, with Minister and Deputy Minister in attendance

Meeting report

DRDLR’s Responses to ESTA Bill Comments

The Department went through each organisation’s comments on ESTA, and provided its responses to each one.

Legal Resources Centre comments:

• Definition of “reside” was narrow and did not protect occupiers sufficiently as it suggested permanent uninterrupted presence by an occupier.
• Definition of “occupier” limited to a person earning less than R5000, as prescribed. The regulations need to be amended.
• Definition of “dependent” must be removed as it did not serve to protect occupiers.
• Definition of “family” was limited as it did not cover partners living together but not married.
• Section 8(2) provided for the right of the owner to evict an occupier who had been dismissed from employment. Any dispute relating to the dismissal was dealt with in terms of the Labour Relations Act LRA ((Commission for Conciliation, Mediation and Arbitration (CCMA)). It was proposed that the determination for the eviction, even in dismissal cases, be dealt with (be made) by a court as an ordinary eviction application.
• Section 9(3) must be amended to ensure that a court must consider an eviction application only after it had received a probation report.
• Sections 9(4) and 8(5) provided that a spouse or dependent of an occupier who died or was unable to provide labour due to illness, injury or disability should have only 12 months to reside, and thereafter may be evicted.
• Section 6(2) amendment (clause 3(a)) imposed an obligation on the occupier to maintain a dwelling place. This was onerous and burdensome on the occupier.
• Clause 8 (Land Management Board) was problematic for the following reasons:

- Practical measures to ensure the Board performing its functions were not outlined

- Some functions duplicated those of the Department e.g. create mechanisms for legal assistance or provide mediation or arbitration services. How did this relate to the panel of attorneys facility in the Department and section 21 of the Act?

- “Appropriate qualifications” was too broad.

- Committees seem to operate parallel with land reform district committees.

• Land tenure grants – it wasnot clear how these would benefit occupiers as opposed to owners.
• Tenure grants must be used to leverage better tenure rights for occupiers.
• Amend section 23 that referred to the Attorney General.

DLDRL’s response

• The definition could be revised to take into account the fact that physical presence may be interrupted by economic factors such as employment.
• It was not indicated whether the amount must be increased or decreased. This was a matter for the regulations, and not for the Bill.
• The word was used in the Act, and it was important that it be defined. However, it may be reviewed to provide for other descriptors such as social support or preservation of family relations instead of limiting it only to legal duty to support. “Family” must also be financially dependent on the occupier.
• The definition may be expanded to include unmarried partners living together.
• Sections 8(2) and 8(3) could be amended to address the legitimate concern raised. The amendment would ensure that the tenure right of an occupier was not simply terminated by dismissal from employment. Owners could simply use their discretion to withhold employment as the basis for terminating an occupier’s right to tenure.
• Section 9 could be amended accordingly, as the mandatory consideration of the report would serve to protect occupiers even after an eviction had been ordered.
• Section 8 may be amended to ensure that if the spouse and dependents desire to continue residing on the farm, their right be protected.
• The amendment reinforced a right for the occupier and did not impose an obligation. Maybe the wording could change from “take reasonable measures” to “have the right to”.
• Clause 8 to be amended to make it clear that the role of Board/Committee was advisory and not executive:

- Practical measures to be outlined, or the Board/Committees are only given advisory functions.

- Duplication of functions to be addressed, and Board/Committees also to be given advisory functions, thereby advising the Department on the functions discharged by the Department.

- Qualifications to be specified.

- Committees’ role advisory, and not executive.

• Both occupiers and owners benefit in terms of the Act.
• Where grant was made for on-site development, the development must be insulated in favour of occupiers and against an owner’s total control. Evictions may not be allowed without the Department’s consent or the owner may not charge rent.
• Section 23 to be amended accordingly.

Ms Bongiwe Lufundo, Principal State Law Advisor, said she had assisted the Department in drafting the Bill, and certified it as constitutional and in accordance with the legislative drafting processes.  She was there to assist the Department in processing the Bill.

She discussed the issue with definitions such as “reside” and “dependent”. “Reside” in the Bill meant to “live at a place permanently”. Different stakeholders had contested this definition. She agreed that the definition in its current form was restrictive and problematic, as it did not take into account factors such as employment. She agreed with the Department that the definition should be amended to accommodate the fact that a permanent physical presence may be interrupted.

The definition of “dependent” was linked with the disputed definition of “family.” The contention over the definition of “dependent” was the fact that it burdened family members, and people had a problem with the use of “legal duty to support” in the definition of “dependent”. She cautioned that the definition should not be separated from the definition of “family”, and suggested that the definition of “dependent” could be simplified to mean a family member of the occupier who relied on the occupier for financial support. There had been a suggestion to remove “legal duty to support,” and that she supported that suggestion.

Ms Lufundo explained that the definition of “family” included the spouse in a customary marriage, whether or not the marriage was registered; a child, including an adopted child; a grandchild; a parent; and a grandparent. All these people had to be dependents of the occupier and they had to live with the occupier on the land.

The Constitutional Court had tried to define what constituted “family” in accordance with Section 6, 2(d). At the time of the case, the Act did not have a definition of family. The Constitutional Court had ruled that the right to family should be extended and not be limited to the nuclear family, which was the spouse and children. The Court had said that the extent of family needed to strike a fair balance between enabling the occupiers their right to enjoy their family life, and enabling the owner of the land his or her right as a land owner.

Ms Lufundo said that the Department believed that the current definition of “family” struck a fair balance, and that it was more inclusive as it included extended family. She emphasised that “family” members had to be dependent on the occupier.

Discussion

The Chairperson thanked the Department, and opened the floor for questions and comments, specifically about the definitions.

Mr M Filtane (UDM), suggested that the word “money” be replaced with “social needs,” as money did not always cover social needs.

Ms A Steyn (DA), asked whether the definition of “reside” imposed a limit to physical presence. She explained what she meant by giving an example. She asked whether someone who no longer worked on the farm but still resided there, and went away for work for five years and came back, would still be legally considered as a resident. Was there a standard definition of “family” that could be taken from another legal document and be used in this Bill?

Ms Lufundo said she would not be able to answer the question related to the definition of “reside,” as it was all about context. She would need to know who the person was, whether it was the occupier or a dependent. She explained that it needed to be understood and looked at in the context of the Act. It had to be understood that every piece of legislation was different. In each piece of legislation, when a word was defined, it was defined for the purpose of the law. Factors such as target, inclusivity, and the purpose of the Bill, were considered when formulating definitions. For most laws, “family” was limited to the nuclear family.

Mr T Walters (DA) asked that the Department submit all the definitions to the Committee so they could look at them thoroughly. It was important for the Committee to ensure that the definitions they had for the Bill were well founded and consistent with other pieces of legislation. He did not want the Bill to be in contradiction with other pieces of legislation.

The Chairperson asked for clarity on whether those who were evicted were provided with accommodation or a place to stay.

Mr A Madella (ANC) was concerned that the Bill’s definition of “family” did not protect the foster child, unless the child was adopted. He asked that the Department include foster person in the definition of “family”.

Mr P Mnguni (ANC) agreed with Mr Filtane that the use of money in the Bill was problematic. He supported this statement by saying that no one knew what R5 000 would mean or what value it would provide in a number of years’ time. He asked that the state law advisors should have their own column in their presentation where they noted their comments and input. He had a problem with the scope of the extended family in the Bill, saying that it was closed. He asked for clarity from Ms Lufundo on whether she had said that the Department did not mind excluding the extended family, and asked the Department if they were sure about that.

Mr K Robertson (DA) agreed with Mr Madella. Children who were not legally adopted needed to be included and protected in the definition of “family” in the Bill. He asked how the Labour Law defined “family”, and whether the Bill’s definition of “family” was consistent with the Labour Law’s definition. He did not want what the Committee was trying to do, to clash with the Labour Law.

Ms Lufundo said that the Department had sought guidance from the Constitutional Court on the definition of “family”. She went through paragraph 37 of the judgment, and highlighted the key findings of the ruling. The judgment had stated that “family” was open ended and that the Department should not try to limit it, and the Department should instead try to strike a balance between the right of the occupier to have and enjoy a family, and his or her rights as a land owner. Adult children were excluded in the definition.

The Minister said that the definition of “family” in this Bill should be understood and seen as redistributive.

The legal advisor, DRDLR, made note of the fact that the Department had not made any changes. It had presented all the different stakeholder comments and presented suggested amendments. It was waiting on the Committee to approve these amendments and make further suggestions and amendments.

Mr Mnguni welcomed the openness of the Department to accept feedback from the Committee. He told the Department that it was on a matter of principle and the separation of powers that the Committee was turning to its own legal team for guidance on this Bill.

Mr Walters suggested that the Department look at other pieces of legislation to guide the definition of “family” in the Bill. He also suggested that the Department focus on the nature of the relationship between the occupier and the people living with the occupier. He asked that the Department submit a list of all the different definitions of “family” found in different pieces of legislation. He reiterated the possible need to move away from the definition of “family” to the nature of relationships of the people living with the occupier.

The Chairperson said that Ms Lufundo had already adequately answered Mr Walters. She said that it would not help the Committee to get a number of definitions from different pieces of legislation, as the context and purpose would differ from legislation to legislation. The Committee needed to work with the definition that it currently had and work to amend it to suit the context and purpose of the Bill.

The Chairperson reminded the Department that there was a concern and a suggestion to change “money” and the monetary value of R5 000, and replace it with “social needs.”

Mr E Nchabeleng (ANC) agreed that there should not be a monetary value in the Bill.

Lawful Evictions

The Department’s legal advisor took the Committee through those aspects dealing with evictions.

Consent to reside on land

• Residing on land on or after 4/2/1997 (definition of “occupier” and sec. 6(1));
• Openly/continuously residing on land for one year presumed consent unless the contrary was proved (sec. 3(4));
• Openly/continuously residing on the land for three years was deemed to have consent (sec. 3(5)).

Reasons/Justification for evictions

• Any lawful ground, provided eviction was just and equitable (sec. 8(1)), taking into account the following factors:

- Fairness of any agreement/law owner relies on;

- Conduct of parties relied on;

- Interests of parties, including hardship likely to be suffered if there was no eviction;

- Existence of reasonable expectation to continue residing on the farm;

- Fairness of process followed. including whether the occupier was given an opportunity to make representations before a decision was taken.

• The occupier had committed a breach of agreement, which breach could have been remedied (sec. 10(10(b)).
• The occupier had committed a fundamental breach of the relationship, such that it could not be reasonably remedied (sec. 10(1)(c)).
• The occupier had (sec. 6(3)):

- Intentionally and unlawfully harmed another person occupying land;

- Intentionally and unlawfully damaged property of the owner;

- Threatened/intimidated others occupying the land;

- Assisted unauthorized persons to establish new dwellings on the land.

• If right of residence was based on an employment agreement, upon resignation or dismissal from employment (disputes dealt with in terms of Labour Relations Act) (sec. 8(2)).
• Where the owner, for reasons of operational efficiency, required the dwelling for another person (to be) employed, other than the occupier (sec. 10(3)(c)).
• After death of the occupier. (Spouse/dependents may be evicted, but with 12 months’ notice (sec 8(5)). (In case there were no individual contracts of employment).
• In an instance where there had not been a breach by the occupier, the court could still order an eviction if, in its determination, it was just and equitable to do so (sec. 10 (3)(c) and 11(2)).

Procedure for evictions

• An eviction could be carried out only in terms of a court order (sec. 9(1)).
• After making a decision to evict, the owner must, two months before, notify in writing:

- The occupier;

- The municipality;

- The provincial office of the Department (DRDLR) of the intention to apply to the court for an eviction order (sec. 9(2)(d)).

• The Court must request a probation officer/ officer of the Department/ any official, as determined by the Minister, for a probation report. The report must indicate:

- Availability of suitable accommodation;

- How an eviction would affect constitutional rights of affected persons, e.g. education of children;

- Any hardships likely to be suffered by the occupier.

Effect of eviction order

• The owner must compensate the occupier for structures erected/improvements made/standing crops (sec. 13(10(a)). See factors to be taken into account ((a)(i)-(iii)).
• The owner must pay the occupier outstanding wages (sec 13(1)(b)).
• The court may order the owner to allow the occupier an opportunity to demolish structures/to tend and harvest standing crops (sec 13(1)(c)).

Restoration after unlawful eviction

A person unlawfully evicted may apply to court for (sec. 14) –

• Restoration of residence/use of land
• Repair/reconstruction/replacement of structures damaged/demolished/destroyed
• Restoration of services the evicted person had
• Payment of compensation for damages
• Costs of application.

Urgent applications for evictions

A court may still order an eviction if approached on an urgent basis if (sec. 15):

• There was imminent danger of substantial injury/ damage if the respondent was not forthwith removed
• There was no other effective remedy available
• The likely hardship for the owner exceeded that of the occupier
• Adequate arrangements had been made for reinstatement if the final order was not granted. The municipality and the Department must still be served with notice.

Discussion

Mr Filtane said that it was very worrying that the occupier and their dependents’ security of tenure depended on the employer and occupier’s work relationship. He made an example of a case that had been brought to the Committee’s attention, where an employee was fired and replaced because the employer thought that he was drunk, when in actual fact he had been sick and had gone to the doctor. The Bill needed to protect occupiers from this, and the Bill should separate the rights of the people on the land and work relations.

Mr Madella was concerned about soft retrenchments and the change of ownership of the land. Occupiers needed to be protected from such, because currently the Bill did not have a provision for this. In some instances, occupiers were paid off to leave the farm because the new owner had no use for them, and in some cases occupiers were forced to leave the land without being warned or informed. Probation reports should be mandated in order to protect occupiers.

Mr Walters agreed with Mr Madella, and said that this was a very important point to make. The Bill placed an obligation on the Department, and it was important to ensure that the Department had the capacity to issue probation reports.

Ms Lufundo said that the LRC had caused confusion, and she wanted to clarify the issue of dismissal and eviction. She explained that the Act did not take power away from the court to deal with evictions -- only the court could evict. There was a difference between eviction and dismissal. The right of residence was linked to the right of employment. When employment was terminated, the occupier needed to move because the reason they resided on the land was because of employment. This was very clear in the Bill, and the distinction was made from 1997 in the Bill. If the Committee wanted this to be amended, they needed to deliberate it as a Committee and then present it to the Legislature.

Mr Filtane asked whether retirees were intentionally left out in unlawful evictions, as he had not come across any reference to them. The Committee had come across a number of cases where retirees were told that they could not occupy land and were therefore removed.

The Department’s legal advisor said that the Act did deal with occupiers over the age of 60. He explained that there was a concern that retirees were not protected, and as a result a provision had been made for them. He said that the court considers the probation report. Currently a probation report was not mandatory, but proceedings may not continue without a probation report.

The Chairperson said that this issue needed to be looked at, and a way forward had to be established. The Department was clearly failing to provide probation reports, thus making occupiers vulnerable. The probation report had to be made compulsory.

Ms Steyn said that the evictions should be stopped if the Department was not doing its job. This was very problematic.  What action could be taken against the Department if they were not delivering on probation reports, especially since they had already been warned and pressured by the Committee on this issue?

Mr L Mbinda (PAC) said that this issue had to be taken very seriously, because it opened up the Department for attack. A family could get a lawyer and take the Department to court for failing to provide information that could have saved their land or home.

The Department’s legal advisor said that a common trend had been reported, that where there was a change of ownership, things changed for the worst. Section 24 of the Act provided some sort of protection to occupiers in instances of succession. This section stated that the rights of occupiers should not change when the ownership of land changed.

He said that the LRC was suggesting that the right to employment and the right to residence should not be linked. They were also suggesting that dismissal and eviction cases should be dealt with together, not separately.

Mr Mnguni cautioned the Committee about the time remaining, saying that the Committee may want to be more selective about the issues they wanted to highlight and discuss as there was only an hour left of the meeting. He suggested leaving issues that needed to be debated to when the Committee would deliberate on the Bill.

He said that the Department’s inefficiency and non-performance should not result in the victimisation of a member of the public. No one could be seen as fairly evicted in the absence of a probation report. He had received a number of e-mails from people of pictures of eviction orders they had never been informed of, and notices served in a different language to their native tongue.

The Chairperson asked where the problem lay. The eviction process was very clear: one needed to get a court order, then the municipality and the Department had to be informed. There were instances where the Department was not informed.

Mr Filtane drew attention to the reasons or justifications for evictions. He asked whose responsibility it was to prove intent.

The Department’s legal advisor said that it was the owner’s responsibility to prove intent.

Mr Nchabeleng said that there was a book about a man who had been wrongfully accused and imprisoned for something he did not do. He was now suing the state for the time he had spent in prison. It had been found that the eviction and proceedings of the eviction had not followed the lawful process. He asked why the Committee or the Department was not attending to such cases and looking at them and learning, and restoring public trust.

Mr S Matiase (EFF) said that the purpose and intent of the review of the first amendment was to find workable solutions and permanent mechanisms to facilitate a peaceful and workable relationship between the farm owners and the farm workers, often referred to as dwellers or occupiers. The Committee should be constantly informed by this purpose and intent. He was pleased that the definitions had been reworked and amended to be more fitting for the purpose and intent of the Bill. Evictions should take place only under force majeure, and only if they were allowed by a superior force, the superior force being the court.

The Department’s legal advisor said that section 14(4) of the Act made provision for restoration if occupiers were unlawfully evicted. The Act had commenced on the 28 November 1997. Persons unlawfully evicted had a year in which to sue.

He said that it was important to understand that the relationship between the owner and the occupier was completely contractual. He understood force majeure as a defence, as an act of God. For example, if the owner wanted to terminate the occupier’s contract because of non-performance, the occupier could use force majeure to justify their non-performance. They could say that they could not perform because of something beyond their control.

Mr Walters said that the Committee was moving towards debating actual clauses, and asked that such comments be reserved for when the Committee was set to debate and discuss each clause.

Other stakeholders’ comments

The Department’s legal advisor discussed the remaining stakeholder’s comments on the ESTA.

Poverty, Land and Agrarian Studies (PLAAS)

• The Bill did not create an obligation to provide alternative accommodation for those evicted.
• The definition of “dependent,” which was premised on legal duty to support, excluded children above 18 and other relatives living with the occupier. Alternatively, it should not be defined, as it was restrictive.
• The definition of “occupier” should be revised to delete “or has,” and the prescribed amount of R5000 should be adjusted in the regulations.
• Grants must not be extended to owners, but to occupiers, and any reference to owners receiving grants should be deleted.
• Maintenance of dwellings must be a right and not an obligation for occupiers.
• The functions of the Land Rights Management Board overlap with those of the Department (e.g. monitoring, tenure disputes, legal assistance, data base of occupiers).
• The functions of the Land Rights Management Committee overlap with those of the Department. Further, the Committee could not take executive functions and it was inappropriate to provide for this in legislation. There were already district land reform committees in place.
• Section 20 (Land Claims Court) must be amended to provide that the LCC could uphold an eviction order only after any appeal process in a superior court had been finalised.
• Offences. Section 23(1) must be amended to make it obligatory for the police to immediately investigate cases of unlawful evictions and for the National Prosecuting Authority (NPA) to prosecute.
• The court hearing an eviction order must require proof that the occupier was aware that the resolution of a labour dispute meant that he/she should be evicted. (See section 8(3)).
• Consideration of probation reports (section 9(3)) by the court must be obligatory.
• Alternative accommodation for the former occupiers (Clause 2: sec 4). Former occupiers and the scope in terms of the time frame were not defined, thereby making it impractical to determine.

DLDRL’s response

• Provision for alternative accommodation was provided for, but not as an obligation.
• Definition to be amended to take into account other factors (see response to LRC above). Removing the definition would only defer its interpretation to the courts.
• To be revised accordingly, but leave adjustment to regulations or delete paragraph (c) that refers to income.
• Grants were mostly to assist occupiers, but also to compensate owners for services rendered to occupiers.
• In the Act, it appears as a right. Words “to take reasonable measures” should be revised, as they sound obligatory.
• The Board’s role was advisory.
• The Committees’ role was advisory.
• This was a matter not provided for in the Bill. However, appeal proceedings would ordinarily have the effect of halting the eviction order appealed against.
• The proposed amendments could be effected, but it would be stating the obvious and prescribing how other Departments must perform their functions (SAPS/NPA).
• The proposed amendment could be effected in section 8(3), although the section was not referred to in the amendment Bill.
• Section 9(3) should be amended to make consideration of the report obligatory.
• Former occupiers referred to those who were residing on farms on 4/2/1997 and could still reasonably expect to be restored in terms of section 14.
• Reference to former occupiers may be deleted, or least defined in terms of time frame.

The Minister interrupted the Department’s Legal Advisor, and explained that that was not what he had said. He was not happy that officials were changing what he had initially said, especially since the Bill was politically motivated. He had made it clear that no eviction should take place without alternative accommodation being provided. This was a critical aspect of the Bill and one of the fundamental reasons why the Bill was being amended. Basic human rights could not be violated in the process of evictions, so alternative accommodation had to be provided. He told the Committee about a farm in North West, which he had recently visited, where occupiers and their dependents were forcefully evicted without alternative accommodation being provided. The Minister made it clear that the provision of alternative accommodation before eviction was obligatory.

The Department’s legal advisor apologised for his mistake.

Commission for Gender Equality

• Enforcement of the Act in relation to unlawful evictions was weak.
• Cases heard by the LCC must be gender disaggregated.

DLDRL’s response

• Enforcement was dependent upon other Departments (Police and Justice).

Agricultural Workers’ Empowerment Trade Union Council (AWETUC)

The Council had requested more time to submit comments on the Bill.

DLDRL’s response

This request should be directed to the Portfolio Committee.

Transvaal Agricultural Union (TAU)

• The definition of “family” was opposed as many family members constituted a serious burden for the owner in terms of accommodation, and many other services which were ordinarily the responsibility of municipalities.
• Tenure grants: no assurance was given that the grants would sufficiently cover infrastructure development for the owner.
• TAU was not consulted by the Department on the provisions of the Bill.

DLDRL’s response

• The definition was important, as it made the law clearer. If not defined, the term may be interpreted in different ways by the courts as it was used in the Act.
• It was difficult in law to prescribe the amounts.
• Organised agriculture had been one of the stakeholders consulted on the Bill.

Mr Walters asked whether or not TAU had been consulted.

Ms Lufundo said that TAU was definitely consulted in the process.

KwaZulu-Natal Agricultural Union (Kwanalu) – Agri SA

• “Family” was not defined in the Act. It must be defined restrictively, as commercial farms were places of production and not accommodation.
• Tenure grants. Funding must be ring-fenced in the Department.
• Maintenance of dwellings must not extend to expansion or erection of new dwellings.
• Clause 4, on legal representation, proposed in section 9(1)(b), was opposed as legal representation could not be a precondition for evictions.
• Clause 7 on weather conditions was opposed.

DLDRL’s response

• Family was defined in the Bill.
• This was an implementation matter.
• In terms of section 6(2), the rights of occupiers must be balanced with the rights of the owners.
• Provision of legal representation was in the interest of justice, both from the owner or occupier’s point of view.
• It was only humane to provide for reasonable weather conditions.

Department of Cooperative Governance (DCOG)

• Tenure grants must also be allocated to municipalities, as they were mandated to provide services.
• Occupiers must be supported to access land for farming and production purposes.
• Many comments were not on the Bill, but on general cooperation issues.

DRDLR’s response

• Clause 2, section 4(4) empowered the Minister to provide tenure grants in agreement with municipalities or provincial governments.
• Section 4(1) provided for tenure grants to enable occupiers to acquire land as well.

AGRI-SA

• The definition of “family” appeared open ended.
• Tenure grant funds must be ring fenced.
• Maintenance of dwellings must not extend to their expansion.
• Provision for legal representation as a condition for hearing was opposed.
• Clause 5: the requirement for mediation before hearings would delay evictions.
• Clause 7: the provision on weather conditions was opposed.

DRDLR’s response

• The definition was restrictive in that it listed categories of persons, which meant it excluded those not mentioned.
• This was an implementation matter, not for the Bill.
• The provision did not make the right absolute. It gave some discretion to a court.
• The rationale for mediation was indeed to ensure that there was no summary deprivation of the rights of occupiers.
• The provision on weather conditions was important to mitigate against the hardships that the occupier would already be faced with.

Association for Rural Advancement (AFRA)

• Definitions of “family” and “dependent” were narrow and served the interests of the owners.
• Tenure grants: it was not clear how these would be calculated.
• The Land Rights Management Board/Committee functions overlapped with those of the Department.
• It must be ensured that the justice system was responsive to ESTA.
• The Department must clarify the provision of emergency accommodation/shelter for evictees who must still be provided with alternative accommodation.

DRDLR’s response

• The definitions’ scope was intended to protect occupiers and balance their interests against those of owners.
• The calculation of grants was a matter for implementation of legislation, not for the Bill.
• Make their functions more advisory instead of executive functions.
• Implementation of legislation required departments to cooperate.
• This was a matter for the implementation of the legislation.

South African Local Government Association’s (SALGA)

• The provision of tenure grants to municipalities was crucial, as municipalities provided services.
• The establishment of Board/Committees was supported.
• Other comments, which were not related directly to the Bill.

DRDLR’s response

• Provision was made for the provision of grants to municipalities.

General comments from the public

Comments from the public were related mainly to the conditions of the farms as experienced by occupiers. As these were challenges, reference was made to the relevant sections of the Act dealing with the matters where such provisions already existed. Where there were no provisions dealing with such challenges, this was also indicated, thereby pointing to a gap in the Act. The Department also commented on how such gaps may be addressed.

The public’s main comments were:

• When the main occupier (husband) died, family members, including the wife, were evicted even though they were permanently employed.
• Family members were made to pay rent.
• Definition of “dependent” must not exclude children above 18 who were unemployed or still at school.
• Moratorium on evictions to be imposed.
• No evictions must occur until alternative accommodation was arranged.
• Constructive evictions rife. Occupiers were denied access to water, electricity, grazing for livestock, restrictions on livestock, and other services and thereby making conditions difficult for occupiers to continue residing in the farm.
• When ownership of farms changed, the conditions of occupiers usually change for the worst.
• Occupiers above 60 were not allowed to retire.
• There must be a clear distinction between tenure rights and labour relations rights. Evictions should not necessarily follow because there was termination of employment.
• Police did not stop evictions when they were reported to them.
• Occupiers or former occupiers were not allowed to bury their dead family members on farms where they resided.
• The State must have servitudes over schools on farms so that services could be provided by the State, and the schools were not left in the absolute control of owners.
• Enforcement of the Act was weak.

DRDLR’s response

• The eviction of the family members was not automatic upon death of the main occupier. It must still follow the normal process in terms of sections 10 and 11 of the Act.
• Payment of rent was per agreement.
• The definition would be amended accordingly.
• The Minister had no authority to suspend the operation of legislation.
• Provision of alternative accommodation was one of the considerations by the court before an eviction could be ordered. However, it was not a prerequisite.
• Occupiers did not appear to have easy access to dispute resolution mechanisms in terms of the Act. This was an implementation matter that the Department could address.
• Section 24 provided that the rights of an occupier bind successors in title. However, in practice, this depends on access by occupiers to assistance to enforce their rights.
• Section 8(4) generally protects an occupier who is above 60 from eviction.
• Tenure rights of occupiers were linked to employment, in that the owner must consent to the occupier residing on the farm. Usually the consent was on condition that the occupier provided labour/service to the owner.
• This was an enforcement matter that required cooperation between the Department and the South African Police Service (SAPS). A Memorandum of Understanding (MOU) between the two departments may assist.
• Section 6(2)(dA) entitled an occupier to bury a family member on the farm if that family member was residing on the farm. Section 6(5) entitled family members to bury an occupier on the farm.
• Section 26 empowered the Minister to expropriate land or part of it for purposes of development. It could also be used for public purposes. Actually, this section could also be used by the Minister for on-site development for occupation by those who had been evicted or those seeking better living conditions.

Proposals for general enforcement

The following were some proposals that could be considered for general enforcement of the Act:

• The establishment of a unit in the Department that would be dedicated to the implementation and enforcement of the Act.
• The unit must have the functions that the Department was proposing for the Board/Committees, including receiving and acting on complaints relating to violations of occupier rights, coordinating dispute resolution mechanisms, coordinating legal assistance, including responding to threats of evictions, interdicting evictions, data collection, etc.
• (he unit must work with the SAPS and follow up on all unlawful evictions and insist on arrests and investigations. This may require an MOU on cooperation in training on the Act etc.
• The unit must work with the NPA to ensure that there were prosecutions for unlawful evictions.
• The unit must also implement section 14 dealing with restoration of residence or use of land and compensation where unlawful evictions occurred. The unit must, through the panel of attorneys, vigorously pursue restoration proceedings in cases of unlawful evictions.
• The Department must seriously consider having discussions with the Department of Justice with a view to having the Land Claims Court as the only court of first instance dealing with evictions. This would ensure specialisation by the court. It would also deal with the challenge of perceived bias by Magistrates Courts, which were seen to be colluding with owners.

Closing comments

The Minister drew attention to the issue of occupiers not being able to bury their family members on the farm. He referred to the “was” in the following point: “Section 6(2)(dA) entitles an occupier to bury a family member on the farm if that family member was residing on the farm. Section 6(5) entitles family members to bury an occupier on the farm”, and said it had to be changed to “is”.

The Chairperson thanked the Department’s Legal Advisor and the Department for the clarity of their response to the ESTA comments. She asked the Department if there were any closing remarks.

A DRDLR official said that she had noted other comments made by stakeholders at the stakeholders’ meeting, which were not in the amendments. These comments included issues of freedom of association and access to information; issues of settlements; and the issue of access to funds. Section 23(2) of the Bill discussed the issue of access to funds. She said that officers of the state could not be prevented from accessing funds.

The Chairperson asked her to explain why the toll free number had not been functioning for three months.

She replied that the Department was currently working on a report on this issue. The line had not been operating from 2 February to 18 April, while at other times it had been working on and off, depending on the service provider’s connection. Telkom was the Department’s service provider. Most of the faults lay with the service provider and not the Department.

The Chairperson said that the Committee would have a meeting next week where the Committee would debate and discuss the Bill and the issues that had been presented by the Department today. The Parliamentary legal advisor, the Department’s legal advisor and the State law advisor must be present for the meeting. The Committee would go through each clause next year.

Mr Filtane suggested that the Committee invite the Public Protector to share her office’s view and input on the Bill.

Mr Mnguni disagreed with Mr Filtane. He said that there were too many Chapter 9 institutions, and if one was invited the others would have to be invited too. The Committee did not have time for this. The process had been open enough and everyone had had time to submit comments. The main stakeholder, the public, had been heard so there was no need to bring in the Public Protector.

The Chairperson said that bringing in the Public Protector would delay the processing of the Bill, as other Chapter 9 institutions would also need to be invited before the Committee.

Mr T Mhlongo (DA) asked how many Bills the Committee had outstanding. He said that the officials were putting pressure on the Committee to deliver and do due diligence. The Public Protector would help to ensure due diligence.

The Chairperson said that the Committee should not further complicate its work. The Committee had already consulted everyone and all the avenues had been exhausted.

Mr Walters said that the purpose of the Public Protector would not be to consult, but to help the Committee to ensure due diligence on its part.

The Chairperson said the Committee could invite Chapter 9 institutions to ensure due diligence.

Mr Robertson asked when SAPS would be back for their presentation on farm evictions.

The Chairperson said that SAPS had sent in their apology and had requested two weeks to prepare for their presentation. The delay was due to the fact that SAPS was waiting on provinces to report back to them about eviction cases. SAPS would be back before the Committee next year.

The meeting was adjourned.