Extension of Security of Tenure Amendment Bill: SAHRC, Public Protector & SAPS comments

Meeting report

Opening Remarks 
The Chairperson welcomed the Public Protector; the South African Human Rights Commission (SAHRC), the South African Police Service (SAPS), Department of Rural Development and Land Reform as well as Members. She said the Committee had the energy for intensive oversight as they were refreshed from the holidays. The aim of the meeting was to see if there were reports on violations of rights of people living on farms as well as to ensure that the Chapter 9 institutions who were there present worked together as a team to ensure that rights of people working on farms were protected. Apologies were read from Acting Director General Leona Archary, Minister Gugile Nkwinti, Deputy Ministers Candith Dlamini- Mashego and Mcebisi Skwatsha who were attending cabinet meetings.

South African Human Rights Commission comments on the ESTA Bill
Mr Jonas Sibanyoni, SAHRC Commissioner, briefed the Committee on the Stakeholders’ meeting on extension of security of tenure for farm dwellers and farm workers. He said in 2003, the SAHRC had an enquiry into human rights violations in farming communities in order to reflect on the broad causes of human rights abuses. Non-compliance with ESTA was due to lack of knowledge of ESTA as well as the fact that ESTA was regarded as a contested legislation. Recommendations of the 2003 SAHRC Report was training for all role-players, amending ESTA so that proceedings were not initiated in court unless there was first a mediation process. In 2008, an inquiry was made to analyse the progress of 2003 Report. It found that farm dwellers’ access to legal representation as well as data collection on legal and illegal evictions were inadequate. It was then recommended that the then Department of Land Affairs should enter into dialogue with its partners to review its policy on tenure rights for farm workers and occupiers.

In 2014, the Commission had a third hearing which highlighted some challenges for farm dwellers such as the limited access to government services and adequate housing in farming communities. The recommendations from the 2014 report among others were that the DRDLR should establish the standard in a policy document while the Department of Justice focus on how justice was achieved. SAHRC’s recommendations for proposed incorporation into the Bill was training for all role players; the Department of Justice, along with the Legal Aid Board and the Judicial Education Institute should be given a mandate to promote access to justice and other administrative rights of evicted farm dwellers as well as statutory provision for temporary emergency shelter and services for people displaced from farms. The task of the Land Rights Management Board to set up a database of occupiers, land rights disputes as well as evictions will improve data collection while data on legal and illegal evictions will assist in trends analysis.

Mr Chris Nissen, SAHRC Commissioner, added that the Western Cape SAHRC office had received a number of complaints in the last two years and one great concern was that farm workers were encouraged to bury their dead relatives in the towns which were a great violation of their access to family members. Three weeks ago, there was destruction of illegal structures in the Overberg. A great concern was the role of SAPS. There should be a procedure on how SAPS handled complaints on illegal structures.

Discussion
Mr M Filtane (UDM) said the SAHRC did not have the physical ability to enforce these rights. What would the Commission like to be included in the Bill to have the physical ability to execute its mandate? Many Departments including that of Labour had said that it was difficult to access where the farm dwellers lived and that the living conditions were horrible. What was the response of the SAHRC to that? How would the SAHRC ensure that the eviction did not result in people being homeless? Did the SAHRC report to the Public Protector on lack of access to legal representation as well as social services for the farm dwellers? How would the Commission want the Amendment Bill to be structured so that the Public Protector was involved?

Mr A Madella (ANC) said the Committee welcomed the Commission’ recommendations on issues around compulsory arbitration before a matter was taken to court, and the set up of databases by the Land Rights Management Board. How did the SAHRC define family? There was an old definition in the Amendment Bill. Should that be broadened? There existed a lot of informal settlement because the Municipalities were compelled to provide alternative accommodation. When someone leaves the farms, what were the arrangements to go to a decent shelter? There was no reference to anyone who had disability. This was a concern as it should not be assumed that there were no people with disability on the farm.

 Mr T Walters (DA) said people had a right to family life. There should however be a balancing of rights. How would the Commission define family? Did the Commission think there was a need for legal clarity? There was an element of poor co-ordination of service delivery. There should be a certain amount of urban planning as well as land use planning. What was the view of SAHRC on the obligation of government in this regard? What were the right of farm dwellers in communal as well as state lands? One of the fundamental problems pointed out by the institutions was lack of data. What data was required to ensure that people knew their historical rights? What were the SAHRC’S views on mediation? This was essential as mediation could become an open ended exercise.

Mr L Mbinda (PAC) said it was important for the Commission to look at the alignment of land restitutions with the municipal by laws as he found it difficult to deal with the cosmetics because he knew where the problems were. This was a very sentimental issue to the Committee.

Mr P Mnguni (ANC) said he would like the Commission to talk on the concerns on page 17 of its comments. Could not the Commission make recommendations? Had the SAHRC applied its mind to say what it would like the Bill to offer to protect women and children? 2.8 million South Africans lived in inhuman circumstances. There were no tombstones as graves were lost. Farmers farmed on top of graves. If the SAHRC had teeth, it should bite.

The Chairperson asked if the SAHRC had access to the farm dwellers. After the research, what happened next? Did the Commission meet with the stakeholders? What would the SAHRC do? To what extent did the Commission educate the farming community about their rights? The farm owners should equally be educated. It had been indicated that SAHRC assisted people at no cost. What assistance was provided for the people? Was the Department aware of the report of SAHRC? What steps had the Department taken? Mr Sibanyoni had said the Commission barked and also bit. Were there case studies on human rights violations? How many offenders had the SAHRC charged?

Response by SAHRC Commissioner Andre Gaum
Commissioner Andre Gaum said the Commission placed emphasis on the fact that it had many reports on various matters from the farm dwellers. The Bill was an opportunity to ensure that its recommendations in 2003 were implemented through the legislation

On women and children, he replied that the SAHRC would provide the Committee with specific formulations giving effect to the recommendations that had been made. The Commission would bring recommendations to the Department of Justice and would engage the DOJ to ensure the recommendations were implemented. One of the functions of the Commission was to assist in the implementation of human rights in South Africa. It would take steps to ensure that violations of human rights were redressed. This step could be taken in various forms. In holding a Department accountable, one of the powers of SAHRC was to subpoena an official or head of a Department. It also had the powers to approach a court of law and the Commission had done this in the past and would do so if there was a need to.

Response by Commissioner Chris Nissen
On the question on the disabled persons, women and children, he replied that there would be written submissions within the week on how they could be further protection.

On definition of family, he replied that there had been judgements and pronouncements on definition of families. People who were not working on the farm were not defined as family and would have to leave the farm. The SAHRC had had to define what family really was and it would be forwarded to the Committee.

On whether SAHRC had case studies on human rights violations, he replied that the Commission could point out that there was real brutalisation in the farming community. The issue was how that would be addressed by all stakeholders.

On access to farms, he replied that there was access to some areas and some other areas were a no-go zone. There must be a willingness on the part of the farms to participate to create a conducive environment. Some farms provided mobile toilets while others did not. All role players must work together so that this issue could be addressed

On access to the people, he replied that there were those who came to the SAHRC office and laid complaints and the office took it from there

On mediation, he replied that it could take a long time. If both parties were willing to come to the party, the SAHRC was available to facilitate mediation. If mediation failed there would be dispute resolution and the last option was to go to a court of law. He added that part of the mandate of the SAHRC was to hold the Departments accountable for violation of human rights as well as give commendations where human rights were upheld.

On shelter and alternative accommodation, he said two weeks ago, SAHRC asked a municipality what happened to people when they were put off. The response of the municipality was that there were no short term plans for housing. The question SAHRC had put to the municipality was why there was no short term plans for housing.

Response by Commissioner Jonas Sibanyoni
Mr Sibanyoni referred to a landmark decision made by the Constitutional Court in the Stellenbosch case where there were reports that people who were working on the farms were garnished without their knowledge. The courts had ruled that the clerks of the court did not have any right and only judicial officials had the right to garnish people. SAHRC management had reported that in order for the Commission to be more effective, there should be more budget from the National Treasury. This would also assist SAHRC to take cases to court on its own.

The Chairperson said this should not be the last meeting of its sort. The stakeholders in today’s meeting had a responsibility to share information that would strengthen its oversight. The Committee would await recommendations on what should be added to the Bill.

Public Protector’s comments on the ESTA Bill
Ms Busisiwe Mkhwebane, Public Protector, said the Bill would contribute to protection of rights of farm dwellers and farm workers although she was concerned that the legal paradigm was fairly adversarial and could undermine social relations which were crucial for sustainable resolution of disputes between parties. She said so far there was no single conviction despite evidence of continued illegal evictions. There were concerns that functions of the Land Rights Management Board (LRMB) and Land Rights Board Management Committees (LRMC) overlapped with those of the Department. The Public Protector said reports on implementation of legislation was weak and she proposed the establishment of a unit in the Department that would be dedicated to the implementation of the Act.

Discussion
Mr Filtane said stability in the agricultural sector was strategically important to everyone. Criminality in the farming sphere must be reduced to absolute minimum. The Public Protector was the last hope of the nation ahead of the courts, and this had been demonstrated many times. What did the Public Protector propose to be done in the Bill to enhance this? What steps should be included in the Bill to make SAPS discharge their duties. On slide 5 of her presentation, what should be added to the Bill as regards poor relations between organs of government and unions as well as poor implementation of legal action against illegal evictions? One reason the Public Protector was invited was to make proposals that would warrant minimal need for people to come to its Office. The over-arching principle in South Africa was that any deal that involved land had to be reduced to writing. There was no clause in the Bill which enforced a written lease agreement. Did Section 25(6) of the Constitution adequately address this principle? One of the complaints in the provinces was that the Department was not effectively helping people to address the problem.

Mr Walters said the Public Protector referred to a bad relationship between role players. Had her Office looked at the District Land Rights Committee which was created two years ago? Would that assist to bring the role players together? Was that something that had been considered? Would that assist in creating institutions that would support the constitutional rights of the people? The lack of data on who had what rights of occupancy had to be addressed.

Mr Mnguni said farmers sought to dump unproductive farms onto the state at exorbitant prices. There was mass abuse of systems and establishments. It was time to transform some of the practices. 2.8 million South Africans were suffering inhuman conditions often without running water and sanitary facilities. The Public Protector, SAHRC, SAPS as well as the Portfolio Committee should move closer to defend the helpless. There were cases of people shot dead on farms. There should be a clear message that black lives could not be mowed down because they were sleeping on the farms. Brutality had no place in the South African democracy.

The Chairperson said the Public Protector had said that having the Land Rights Management Committee as well as Land Rights Management Board was a duplication of services. Could the Public Protector give more clarity as SAHRC had said it was a good move to help the Department to collate data as well as have timely aware of the disputes that were taking place?

Response by Public Protector
The Public Protector said there would be written detailed submissions to some of the questions and in support of some of the moves of the Office of the Public Protector. The mandate of the Public Protector was to support the constitutional democracy and promote good governance as well as to ensure that people received the required services.

On lack of co-operation and co-ordination and what needed to be added to the Bill, she replied that her Office would take a study of the District Land Right Committee to see whether it would promote cooperative governance.

On the lease agreement, she replied that it was an interesting one as such a case was brought to the Office of the Public Protector. The complainant had said he was forced to sign whereas there was no documentation. It was a brilliant move to look into. People had stayed on those farms for decades and family members had passed on. It would help to address the problems going forward as families would then know what their rights were.

On the challenges of the Department, she replied that there were a lot of complaints about the departments not being of assistance. The Members of the Parliament could raise such complaints directly to the Public Protector so that it could be addressed.

On Section 25(6) of the Constitution addressing the written lease agreement, she replied that it was for Members of the Parliament to discuss and resolve that issue

On the question raised by Mr Walters about the District Land Rights Committee, her Office would look to that and write a response. She added that the issue of a database was critical as it informed policy.

On what the Department should be doing when the Public Protector did not support a Land Rights Management Board, the Public Protector replied that the fiscus was strained and creating additional bodies could not be afforded. It should rather be ensured that the ones that were already created were functional. The Department should collate the data and perform according to the mandate.

On the comments by Mr Mnguni, she replied that if people had been staying on the farms, it should be ascertained how many square meters could be given to them and the recipients would be made to pay. Why transfer the problem to the municipalities when land was available and people were already staying on it?

On the issue of a person who was shot dead, the Public Protector replied that the Office will find out from SAPS why there was neither investigation nor a file opened in respect of that case.

The Chairperson thanked the Public Protector for making a presentation in person rather than delegating. She said the Public Protector had clarified the role it would play on this matter. There was need to strengthen working relations in order to strengthen the oversight of Chapter 9 institutions.

South African Police Service (SAPS) comments on the ESTA Bill
Major-General JM Nkomo, Divisional Commissioner: Detective Services, SAPS, said Section 23(1) of Extension of Security of Tenure Act stated it was an offence to evict an occupier except on the authority of an order of a competent court. SAPS Members may not assist land owners to evict or remove occupiers from the land of a land owner. Only a sheriff may carry out an eviction order. The sheriff may request assistance from SAPS where there was sufficient information that the Sheriff and his employees were exposed to injury, death or damage to property. There were a total of 1 043 offences in terms of Extension of Security Tenure Act. The provincial breakdown is: EC - 66; FS - 36; GAU - 596; KZN - 33; LP - 38; MPU - 37; NW - 23; NC - 7; WC - 207. Between 2007 and 2016, there were a total of 593 cases in terms of ESTA, with 673 accused persons, 399 of these cases had a guilty verdict,194 were withdrawn and there was no case currently under investigation. Cases were withdrawn were due to lack of enough evidence.

Discussion
The Chairperson asked what happened to people who were illegally evicted but were lawful occupiers. There were allegations that when farm dwellers reported cases of victimisation, such cases were not taken seriously but when farm owners made reports at the police station, in most cases, the farm owners were accompanied by SAPS to evict people.

Mr Filtane said SAPS was responsible for protecting the rights of the people from a criminal perspective. Did SAPS have an effective partnership with the farm dwellers? What were the most common reasons given for the withdrawal of cases? During the public hearings, it was observed that people withdrew cases as a result of the fact that the complainants battled to get to the courts in the first place. Were such cases withdrawn by the complainants or the prosecutors for lack of evidence? There were complaints of inability to access the farm dwellers. How is SAPS working on that? How many cases were there in which SAPS was so below par that IPID had had to come to the equation and intervene? If there were no ready answers, SAPS could come at a later date to indicate. The Committee wanted to know if there was adequate and sufficient policing.

Mr K Robertson (DA) appreciated the efforts of SAPS to come better prepared than the last appearance. How far was SAPS in rolling out its National Rural Safety Plan? Were units going to be specialised in handling such matters? Police stations were under-resourced in terms of manpower, vehicles and equipment. There was a need to address this. The formula for how many police officers were responsible for the population was critical. Resources were not being fixed on time. What was the role of SAPS with regards to starting CPFs in rural areas? This was necessary so that if SAPS could not get out, the CPF would be in place. In Mpumalanga, there were cases of illegal land invasion. What was the time variance between the erection of structures and the ejection of the people by the court?

Mr Madella said three weeks before, a huge contingent of police assisted an illegal eviction. Were steps in place to ensure that SAPS understood what to do? He said he had not found anywhere where someone who was involved in illegal eviction had been convicted. The police had failed to pursue the cases of assault. The communities had said that it was no use going to the police to ask for assistance. This indicated that the persons who committed such assaults were untouchable.

Ms T Mbabama (DA) said there was a great understanding of the ESTA Bill at the level of the police officers appearing in Parliament that day. In terms of rolling out the Rural Safety Plan, what plan did SAPS have to train its officers on ground on the ESTA Bill? Could SAPS come to present on the Rural Safety Plan that dealt with the ESTA Bill as well as all issues that affected the ESTA Bill.

Mr E Nchabeleng (ANC) asked if SAPS would suggest any additions to the Bill. He thought that the police would come with proposed additions to the Bill that would make the work of SAPS easier. There were reported cases of farmers who shot at people on farms because farm tenure rights were not secure and SAPS did nothing about that. A child was reportedly killed as the farmer had thought it was a stray dog. The feeling was that when it was cases involving poor people, SAPS was sluggish in its investigation and preparation for such cases was poor. The SAPS presentation indicated that no cases were currently being investigated. Was SAPS really sure about that?

The Chairperson asked if any farmer was arrested for illegal eviction. Were farm dwellers that were caught stealing from the farm arrested?

Mr Nchabeleng asked how many farm owners who molested farm workers were arrested or interviewed as the farm workers were also citizens of South Africa.

Response by Maj Gen Nkomo
Maj-Gen Nkomo replied that there other crimes committed under common law. This particular presentation had concentrated on the ESTA. SAPS would come back with a report that would give the numbers of farm owners that had been arrested.

On the person who was shot dead on a farm, she replied that something must have gone wrong and SAPS accepted responsibility and would correct this in the future.

On cases of illegal land invasion in Mpumalanga Maj-Gen Nkomo replied that there was a complaints directorate there. SAPS would go back to recover information. On time frames in terms of illegal invasion of land, she replied that SAPS was not in a position to know timeframe except if it was called or had knowledge of a trespassing. If a structure was erected, the law was that such a structure could not be demolished.

On the lack of cases currently under investigation, she said this presentation covered cases between 2007 and 2015. There were other cases that were still pending.

On the poor not having access to SAPS, Maj-Gen Nkomo replied that SAPS had different layers of management. The telephone number of the Provincial Commissioner was available to everyone. Where people did not have a phone, it would be impossible to access those numbers.

On why SAPS did not make additions to the Bill, she replied that SAPS could not go and influence legislation unless invited by the Portfolio Committee. SAPS would take advantage if it was invited.

On the question of plans to train members, Maj-Gen Nkomo replied that it was part of the curriculum to have basic training for all new intakes. Those who were trained before 1997 would have the opportunity for a workshop. There was also further learning in HR Division.

On the question of police stations being under-resourced, Maj-Gen Nkomo replied that SAPS was having problems with the fiscals as it had been given a fixed establishment. SAPS was replenishing itself when Members were lost or had to retire. The community was growing every day but SAPS was in a situation where the fiscals did not allow it to grow.

On the number of cases SAPS had conducted which were below par and IPID had to come into the equation, she replied that she did not have the statistics but there was an HR Division that could provide that to the Committee

In terms of cases involving poor people not being taken seriously, Maj-Gen Nkomo replied that SAPS did not discriminate against where people came from or the status of the people.

Response by Major-General Michael Motlhaha
On whether there were effective partnerships with farm dwellers, Maj-Gen Michael Motlhaha, SAPS Component Head for policing emergency services, replied that there were approaches and one of such was through Community Police Forum, Sector Crime Forum as well as Rural Safety Forum. Through information, it was discovered which area each should be implemented as SAPS devised its approach to accommodate each community.

On whether due to the shortage of vehicles, crime related to ESTA were neglected, Maj-Gen Motlhaha replied that each Station focused on crime patterns and trends. There were cluster Commanders and where there was shortage of vehicles it was the responsibility of such Commander to channel vehicles where it was needed.

On implementation of rural safety strategy, Maj-Gen Motlhaha replied that Stations were divided and those mandated to implement rural safety strategy were expected to help rural safety plan. Part of the rural safety plan was that each rural safety Committee was to assist SAPS to address issues of rural safety plan.

Response by Major-General Charles Johnson
Maj-Gen Charles Johnson, SAPS investigator, replied that SAPS would engage Technical Management Services to obtain information on illegal evictions of legal occupiers. It was possible that there was no distinction between legal and illegal occupiers. This depended on how files were described in the system.

On the most common reasons given for withdrawal of cases, Maj-Gen Johnson replied that the reasons were withdrawals by the complainants and the second reason was withdrawals by the prosecuting officers where there was no prospect of a successful prosecution as well as insufficient evidence.

Mr Robertson noted that SAPS had said there were fiscal challenges. Was enough being done to fill the vacuum where there were shortages of police staff?

The Chairperson said the Members had the right to ask any question to the police but the focus of today’s meeting was on ESTA only. She thanked the SAHRC, SAPS and the Public Protector in absentia as she departed before the close of the meeting. There was need to work together in order to assist the farming community.

The minutes of the meetings of the 9, 15, 16, 23 and 30 November 2016 were adopted. There were no comments.

The meeting was adjourned.