The Portfolio Committee deliberated on the Extension of Security of Tenure Amendment (ESTA). The Department reflected on the issues raised by the South African Police Services (SAPS), South African Human Rights Commission (SAHRC) as well as the Public Protector. The South African Human Rights Commission (SAHRC) agreed with proposals and recommendation on adequate housing. It emphasised legal representation, training of officials of SAPS for the enforcement of ESTA, plans for the spouse and the family when the main Occupier was deceased and placed an obligation on the State to take care of the people who formed the family. SAPS responded to the issue of enforcement and emphasised the need for monitoring by Police as well as the Department. The Public Protector said its office had not received complaints between farm Owners and the Occupiers, it said the definition of family must include co habiting partners, it questioned when the main Occupier was deceased, what were the factors taken into consideration? It had said the provision in the Bill on renovation should be a right and not a duty, when the occupier was evicted lawfully he was entitled to compensation, if a contract of employment ceased, automatically the former employee would be evicted. The Public Protector emphasised the right to live on the farm if a person had been there for some time, the issue of alternative accommodation as well as SAPS not following up on complaints from the Occupiers.
The Department said the issue of alternative accommodation had been applauded, there would be a mechanism to support the farm dwellers and alternative accommodation would be given adherence to. The Minister said as a result forensic investigation in relation to acquisition of farm lands the Director General Mduduzi Shabane had been suspended and disciplinary enquiry been initiated against him.
Members asked for a full report on the administration of the Department as well as the disciplinary hearing of the Director General. They said there were instances where there were suspicions of corruption in the Department, the policy based offer by the Department of Human Settlement had not been taken on by farm owners, the Department would be perceived as taking over the responsibility of the Department of Human Settlements if it was involved in accommodation, failures of other parts of the government should not be accommodated in the Act, limited resources should not be wasted in creating structures, dispute land Committees should have meaningful impacts, it was unfair for the state to raise the value of the farm for the benefit of the owners. The Members said also it was a crime to evict legal occupiers, the principle that lease preceded the sale as well as the principle of prescriptive acquisition of property had not been structured into the Bill as the Bill was about justice and protection of rights, the Department as well as its political heads should apply its minds to solve the problems in the farms. They said the rights that existed in South Africa were not in data form, home should be defined in a specific manner, people should be encouraged to have their own lands, they expressed concerns on how the Department would cope without the Director General, Members asked for clarity on illegal eviction of legal occupiers, the local structures in place to meet with Municipalities, the social economic impact of all that had been evicted and the response of the law to those who violated people’s rights,
The Chairperson said the meeting was to continue the issue of processing of the Extension of Security of Tenure Amendment Bill (ESTA). The Department would reflect on the issues raised by the South African Police Services (SAPS), South African Human Rights Commission (SAHRC) as well as the Public Protector so that there would be discussion of the issues in detail.
Briefing by the Department
Mr Sello Ramasala, Legislative Specialist, DRDLR, said the Department did not prepare a presentation but would just go straight to issues addressed by the three stakeholders.
The SAHRC was not focused on the Bill itself. In the main it agreed with proposals and recommendation on adequate housing. It referred to evictions not occasioned by farm owners or by tribal traditional councils as well as local Municipalities. It also emphasised on the issue of legal representation and also what plan was in place for the spouse and the family when the main Occupier was deceased. The Commission also raised issues outside the Bill such as the need to train SAPS officials on how to enforce ESTA.
SAPS did not deal with the Bill itself but made responses to comments dealing with the issue of enforcement. SAPS also emphasised the need for monitoring by police and the Department.
The Public Protector on the other hand indicated that its office had not received complaints from the public in relation to what happened between farm owners and the occupiers. The Public Protector also said the farm officials were not following and the SAPS were not doing enough. The Office said the definition of family must include co habiting partners. What happened when the main occupier was deceased? What were the factors taken into consideration? These were implementation issues. There was also the provision in the Bill on renovation that this was a duty instead of a right. The Public Protector said it should be a right and not a duty. When the occupier was evicted lawfully he was entitled to compensation for the improvement he had made on the land. The Office also sought to link eviction with employment by saying that if a contract of employment ceased, automatically the former employee would be evicted. There was the right to live on the farm if a person had been there for some time. He added that his was a bit tricky. The Office also raised the issue of alternative accommodation which the Minister spoke about in the last presentation as well and about SAPS not following up on complaints regarding stuff being impounded and taken away from the occupier.
Mr Sam Mogaswa, Acting Director, DRDLR, said the issue of alternative accommodation had been applauded by the stakeholders. There would be a structure nationally and provincially where stakeholders would agree on a mechanism to support the farm dwellers. There had to be an engagement with the Department of Human Settlements so that alternative accommodation was given adherence to.
The Minister said the DRDLR had conducted investigation in relation to acquisition of farm lands. The forensic investigation said the Department should take criminal action. The DG had been suspended and a disciplinary enquiry had been initiated against him.
Mr T Walters (DA) said the Committee needed a full report and not just a brief report on the administration of the Department.
Mr M Filtane (UDM) said the policy- based offer by the Department of Human Settlements had not been taken on by the farm Owners.
The Chairperson said comments for that slot should be in respect of what the Minister had just regarding the disciplinary action against the DG.
Mr P Mnguni (ANC) said the Department should forward a copy of the Act for the administration of DRDLR after the legal processes against the DG had been undertaken. It would be prudent to let the due process take its course and afterwards there would be comments.
Mr Walters said he was in agreement. There should be a report to the Committee after the disciplinary hearing.
Mr Filtane said there were a number of instances in the Eastern Cape where issues were not well handled by the Department and the complainants suspected that there had been big corruption. How did the Department intend to close the gap as this was a very sensitive time where the presence of the DG was required?
The Minister replied that the Department would report on the administration of the Department when the time came. On the question raised by Mr Filtane, there were two different issues. With regards to the first issue, it was a very serious matter and it was why the Chief Director had been suspended.
The Chairperson said the Committee must allow the disciplinary process to take its course.
Mr Filtane said in 2009, there was a policy-based offer to the farmers. Whatever plans were made were not likely to be successful. It was an exercise in futility to have a clause that the Government was prepared to help. If the Department was involved in accommodation and funding, would the DRDLR not be perceived as taking over the responsibility of DHS?
Mr Walters said it must be ensured that failures of other parts of the government were not accommodated in this Act.
Ms N Magadla (ANC) asked for clarity on the issue of illegal eviction of legal occupiers.
Mr A Madella (ANC) said the discussion between the DRDLR and DHS was very important. Housing should be provided for the people on the farms. DAFF as well as COGTA should be called to the party so that the four Ministers worked together to provide the much needed accommodation for the people. In the context of what the SAHRC had said, people should not be allowed to be evicted from the farms.
Mr Walters said Dispute Land Committees that were established were role players and institutional backdrops that had to work as well as have meaningful impacts.
Mr Mnguni said there was expropriation of parts of the farm with the aim of improving the infrastructure. It was unfair for the state to do all of that to raise the value of the farm for the farmer owners. There should be a standard set so that when the government department moved in it would be for the benefit of the people permanently and not the farmers. This was not a legal but a policy point of view.
Mr E Nchabeleng (ANC) said for the intervention to be meaningful, there should be a forum where the Minister met with the justice cluster. It was a crime to evict owners of land. The National Prosecuting Authority as well as the Department of Justice needed to respond so that those who broke the law were punished. The apartheid structure was still embedded in the minds of the people.
The Chairperson said in creating structures, the limited resources was being wasted. To what extent was the recommendation made by the SAHRC being considered?
On the question by Mr Madella, Ms Vuyiswa Nxasana, Acting DDG, DRDLR said the Department had engaged the DHS. The discussion was centred on the housing grant and also the development of the farm worker policy. The DHS had said the farm owners were willing to provide houses. The reverse was actually the case. The farm owners believed that in providing houses, it was strengthening the tenure security of farm dwellers. DRDLR had said it would be good if there was a bigger package for housing. The discussion was around what was needed to happen from DHS side to enhance the production of these accommodations. The DHS had said it would develop a Memorandum of Agreement.
On the report of the SAHRC, she replied that she attended two sittings. One of the recommendations was the training of the law enforcement agents on the legislation. The Department ran a training session for all the prosecutors, magistrates and some officials of SAPS. One training session was not enough. Section 23 said there should be criminal procedures for the eviction of occupiers except on the orders of a competent court and no one had been prosecuted under that.
On illegal eviction of legal occupiers, she replied that legal eviction of illegal occupiers was constructive eviction and this meant moving people against a Court Order, switching off lights. There were lots of cases on illegal eviction and the Department was struggling with this. There were district foras established that were the eyes and ears of the DRDLR when people were evicted. The Land Rights Management Board advised the Minster and the Department on the issues of tenure security and it also established the LRMC. It was not true that it will duplicate the Land Rights Management Committees. The Committee would be the eyes and the ears of the Department where the people were evicted in order to bring about the land right culture where the rights of the owners and occupiers were respected. The Department could not do this on a daily basis. The Minister was calling a meeting where all such who were going to be playing a part would be trained.
Mr Ramasala said the Act was used in respect of Commercial Farms. With regards to Communal lands there would be other legislation. ESTA did not apply to communal lands.
On the involvement of other Departments like SAPS as well as DOJ, Mr Ramasala replied that each Act that created offences would require the police.
On illegal eviction he added that, unlawful eviction was an offence in terms of ESTA. That was why the police had been called to act.
On the question by Mr Filtane on overlapping functions with the DHS, Ms Nxasana replied that there was a need to get the alignment with DHS to enable the occupier to benefit from the programme of DHS. The DHS only dealt with structures whereas the DRDLR was concerned with everything else including the land and how it was supposed to be used. There was a need to find a total package for the people and not just a roof over their heads.
The Chairperson asked if there was any local structure in place where the DRDLR met with the Municipalities. During the public hearing it was said that those who lived in state lands violated the rights of the farm dwellers as well. What was the response of the law concerning such people who violated the rights of the people even though it was the state land?
Mr Ramasala replied he will comment on illegal eviction on state owned farms and Ms Nxasana would comment on the policy aspect. He said the person in charge was the one in control of the farms. The Act talked about the owner and the person in charge. The person in charge was the person in control. If either of the two evicted unlawfully, they would both be liable.
Ms Nxasana said state land was covered in the jurisdiction of ESTA. If a person in charge broke the law, he would have to face the wrath of Section 23. Where the land is state land, the recent policy was that the land would be donated to farm dwellers .State land disposal policy as well as Land Tenure security policy was encouraging the disposal of the land and the farm dwellers had the title deeds.
On the question of local structures, Ms Nxasana replied that it was what the Land Rights Management Committee was meant to be doing. It was now provided for in the Bill. There would be a structure and the Mayor would be the Chairperson. She said she knew a number of foras in the past which had no backing of the law. The structures in the past depended on the willingness of the stakeholders and did not have the kind of might that LRMB and LRMC have had.
Mr Madella said during the public hearing, it was said that farm owners had farms where they lived and also had other farms which the farm owners sublet to other people. What mechanism was in place to prevent these kinds of things? If the mechanisms were not there, it should be put in place.
Mr Filtane said there were some aspects that the Department as the sponsors of the Bill did not take into consideration when the Bill was drafted. There was a popular saying that the lease preceded the sale. The lease had to be recognised. That principle was not structured into the Bill. During the deliberations in various provinces, it was heard that once the farm entered into new hands, the new farm owners treated people differently. Some extended the stays of the people while others evicted the people. This was when this principle became very relevant as it could help the people. There was also the principle of prescriptive acquisition. Some people spoken to had said that their grandfather had worked on the farm. When people lived on someone else’s farm for 30 years uninterrupted, then they have the right to claim that land as though it were their own. The failure to add this to the Bill meant that that category of people had been discriminated against. In order to deal with this, there should be a written lease agreement as an unwritten lease agreement was subject to various interpretations. This should be factored as a clause into the Bill. There were those who paid rents to the farmers. How could this be prevented or legalised? The point of emphasis was to secure the tenure of the farm dwellers. This had not actually been secured.
Mr Walters said Mr Filtane was talking about the issue of converting land rights into legal leases. He said accumulated rights over time were right but he did not think that fit into this particular legislation. There would be need for other legislation.
Mr Mnguni questioned the socio-economic impact of all those that had been evicted. He asked whether it was possible with effect from today to measure that impact. There should be a measuring of those that were lawful as well as unlawful. This was to ensure that the Committee was managing the development in its portfolio.
Mr Ramasala said as regards the condition of occupiers where there was change of ownership on the farm; he replied that it could be dealt with. One of the many ways was to provide in the Bill that there would be no change in the condition of the occupier when there was a change of ownership. This could be a bit tricky. If for instance the former owner used to provide electricity because he could afford it and the new owner said he could not continue to provide electricity. How would that be enforced in law? It was not an easy provision to enforce. The Department would look at it further. On the issue of prescriptive acquisition of property, Mr Filtane talked about unoccupied land. There was no land that was not owned in South Africa. Where a land was owned and not occupied, this would not apply, as there was no legal requirement that the land must be occupied. Prescriptive acquisition could not apply where land was owned. With regards to introduction of lease agreement, Mr Ramasala replied that Parliament was talking about land that was currently owned. Lease agreement had different requirements and terms such as the rents to be paid as well as duration of the lease. It was not a route that could be taken from the parliamentary point of view but the Department would research further into it.
Mr Filtane said he understood the logic. The Department should go and apply its mind collectively with the Political heads of the Department as all Stakeholders were trying to solve a long standing political problem. This was very fundamental.
On the question of legislation, Ms Nxasana said it was very useful to consider. She said for a long time, she did not understand what the extension of security of tenure meant. It came with conditions. There were labour as well as tenure relationships. The two were bound together. With the outlaw of labour tenancy, it came to the waiver of rights. A contract was written and there were rights stated in it. The possibility existed for a waiver of the rights. It was this right of owners that were extended. There was a need for a comprehensive piece of legislation that would be everything and not just extending someone‘s rights. On the question by Mr Mnguni on socio-economic impact, she replied that the research was conducted; the Department had worked with ILO to conduct a study. The report was brought to the Committee last year.
Mr Ramasala added that Section 24 of the Act already provided that what was enjoyed by the occupier would continue to be enjoyed with a new owner. Section 6 of the Act talked about rights to exist on the farm, family rights, and rights to have access to health as well as educational facilities, rights to have visitors and to bury deceased people. The Department could consider making the violation of these sections an offence under the law.
Mr Walters said the lack of data related to issues of socio-economy as over time the rights that existed in South Africa were not known as a result of the fact that such information did not exist in data form. It was something that should be looked at by the Committee going forward.
Mr Filtane said as far as the farm dwellers were concerned, the piece of land they were occupying was home and that was the only place they had ever known. When they are driven out, they are being driven out from their homes. Home should be defined in a specific manner. The concept of taking the farm dwellers out once they attained the age of 16 years did not sit well with the farm dwellers.
Ms Mbambama said in terms of looking forward, did the Committee really want people to be staying on the farms? Why not encourage the people to get their own land. The Bill was protecting historical tenures. What was the plan going forward?
Mr Walters said the Bill was about justice and the protection of rights.
The Chairperson said there was need to make out time to discuss all the issues.
Mr Nathi Mjenxane, Parliament Legal Adviser, said as much as Parliament had legislative authority to make original legislation, the Constitutional Court had decided that government mechanisms order than just legislation could still articulate constitutional rights. The regulations as well as policies would assist Parliament to plan financially and also create human resources.
Ms Bongiwe Lufundo, Principal State Law Adviser, OCSLA, spoke on the submission of the SAHRC. There were two issues raised by the Commission. The first was the definition of family and secondly Section 8(5) of the Act. SAHRC referred to the Universal Declaration of Human Rights which defined family as a natural and fundamental unit of society which was very critical. The Charter on people’s rights placed an obligation on the state to take care of the people as the people formed the moral fibre of the family. The Green Paper said family was a group of people united in marriage and included the extended family. SAHRC said the amendment Bill should take cognisance of this instrument (Universal Declaration of Human Rights). She said from her own point of view, care should be taken as family must be defined in the context of ESTA. There should be a balance between the rights of the farm owners and those of the farm dwellers. SAHRC also said that Section 8(5) of the Act was not in the amendment. The concern was that on the death of the occupier, the right of residence of the spouse and the dependants may be terminated upon the expiration of a 12 months’ notice period. The suggestion was that this section should be amended so that occupiers should be treated as independent occupiers and their fate should not be tied to the death of the main occupier. On the question raised in the last briefing on whether SAHRC had made complaints to the Public Protector, she said SAHRC had said the two were Chapter 9 institutions and it was not proper to report to the Public Protector.
The Minister said a farm was a commercial unit and not a residential one; otherwise 100 years down the line, there would be no land for production. Farming was loaded with racial undertones. He said the DRDLR co-ordinated both the rural development as well as the land reform. The idea of LRMC was to give an inclusive institution. It was to have a very representative Committee. It must be ensured that the municipalities provide accommodation when farm dwellers were removed from the farms legally. LRMC was meant for that purpose. DRDLR was concerned with this. This was a sensitive matter and the Department was alert to it. The participants at a workshop said the purpose of LRMC was to ensure that problems were solved. People were already seeing this as a platform where problems would be solved. The people living on the farms were not labour tenants but farmer dwellers.
The Chairperson said the draft Committee report had been circulated. When structures were established, there should be training. The Act was there but there was no enforcement otherwise there will be continuous amendment. The Minister had said some of the issues that were raised would be considered when the regulations are drafted. She appreciated the Minister, the Deputy Ministers and all the participants at the deliberations.
The Committee briefly considered and adopted outstanding minutes dated 1 February without any changes.
The meeting was adjourned.
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