The Committee approved the Extension of Security of Tenure Amendment Bill.
Prior to that, the Department of Rural Development and Land Reform briefed the Committee on the seven amendments proposed to the principal Act, which included the following:
- A new definition for “family” to include the occupiers’ spouse (customary, registered and unregistered marriages), child (including adopted children), grand children, parents and grandparents.
- The substitution of “subsidies” with “tenure grant” to address the challenge of providing more secure long term tenure options.
- An amendment to allow for the “maintenance of dwellings” of land occupiers (occupiers).
- An amendment to allow for the erection of tombstones and to allow occupiers and former occupiers to perform rites thereon.
- Amendments to strengthen and provide clarity regarding evictions - the amendment in of Section 9 meant that only lawful evictions would be allowed (only a court order can result in an eviction). The amendments of Sections 10 and 11 provided for compulsory mediation before eviction could occur.
- Amendments to address the challenge of evictions carried out under unreasonable weather conditions. A court would determine what reasonable weather conditions were.
- The establishment of structures to assist and advise the minister in the implementation and managing of aspects in the Bill. Two new bodies would be created - the LRMB (Land Rights Management Board) and the LRMC (Land Rights Management Committee)
The Committee discussion focused on what was meant with the term “occupier” and who could reside on the land in terms of family members. Members were also concerned about the compensation related to the loss of rights and the lack of dignity and time given to land occupiers to vacate premises once evicted. Members wanted to know who would serve on the new structures and how it would function (LRMB and LRMC).
Members expressed unhappiness with the non-attendance of the senior political leaders of the Department (Minister, Deputy Minister and DG) without an apology. The Committee noted that there were important issues in the Bill that needed the input from the senior political leaders of the Department. The Committee emphasized that if this were to reoccur in future, it would refuse to engage with the Department.
The Chairperson said that the agenda was an important issue as it was about protecting some of the most vulnerable and exploited sector of the community - farm workers. It was important that the Committee and government address the concerns and challenges identified.
He asked if the Minister would be attending.
Ms Vuyiswa Nxasana, Acting DDG: Land Tenure Administration, Department of Rural Development and Land Reform (DRDLR), said she had no information regarding the attendance of the Minister.
Mr C Smit (DA, Limpopo) wanted it to be put on record that the Committee was not happy with the non-attendance of the Minister and Deputy Ministers. He added that some of the important issues in the Bill were political and needed the input from the senior political leaders of the Department.
Mr E Mlambo (ANC, Gauteng) agreed with Mr Smit and said the political leaders of the Department had to be present to enable the Committee to engage with them on important political issues related to the Bill.
The Chairperson said that when the Committee conducted its meetings, especially on important issues such as the Extension of Security of Tenure Amendment Bill (ESTA) - the DG, Deputy Minister and Minister had to be present. It was disappointing that there were no senior political leaders from DRDLR at the meeting. In addition, there were not even apologies regarding their absence. The Committee wanted to conclude its work on the Bill and would proceed with the officials present but wanted to record its displeasure with the non-attendance of the senior political leaders of DRDLR.
Mr A Singh (ANC, KZN) wanted to know what stand the Committee was taking regarding the absence of the senior leadership of the Department without an apology. It was disrespectful and it seemed as if the Department had a “don’t care attitude”
The Chairperson said he would ask the Committee Secretary to write to the Head (i.e Minister) of DLDLR and ask for an explanation regarding their absence.
Mr Smit was in agreement but wished to add that if the was another occurrence like this; the Committee would refuse to engage with the Department.
The Chairperson asked the Acting DDG to brief the Committee on ESTA
Briefing on Extension of Security of Tenure Amendment Bill (B24B - 2015)
Ms Nxasana apologised for the non-attendance of the senior departmental leaders and said that the Bill was very important as it addressed several problems areas encountered regarding the status of land dwellers and farm workers. She said that Advocate Ramasela would brief the Committee on the Bill
During the briefing by Adv. Ramalasala - Ms C Labushcage (DA, Western Cape) and Ms N Koni (EFF, Northern Cape) joined the meeting.
Adv Sello Ramasala, Legislation Specialist, DRDLR, provided the following input.
He said the Bill was published for public comment on 17 October 2013 and that public consultations were conducted throughout provinces and districts. There were also consultations within NEDLAC and all comments were considered and incorporated into the Bill.
He advised that the briefing documents were the same as was provided (to the Committee) on 13 February 2018, and highlighted the following aspects - the background to the Bill, the objectives of the Bill, the key amendments and the socio-economic impact of the Bill.
He said the background and rationale of the Bill was to address four key issues - to challenge the continuing unlawful evcitions suffered by farm workers (he stressed that lawful evictions would still be allowed), the need to clarify certain provisions in the Act, to strengthen tenure security (of which land reform was a priority) and lastly - to ensure stakeholder involvement (between farm owners and farm workers).
He highlighted the following important objectives the Bill, some of these were - the clarification of the definition of farm dwellers/occupiers, clarification of eviction provisions, provision of compensation for farm dwellers/occupiers for loss of rights, the establishment of the Land Rights Management Board (LRMB) and Land Rights Management Committees (LRMC) and the specification of suitable alternative accommodation for people evicted lawfully.
He highlighted the seven sections to be amended and the impact thereof.
- Section 1 - insertion of the definition of “family” to address challenges that excluded some family members. The purpose was to provide more protection to certain family members and dependents and avoid any misunderstanding. The new definition would include the occupiers spouse (customary, registered and unregistered marriages), children (including adopted children), grand children, parents and grandparents. The family members had to be dependent on the occupier and had to live with the occupier on the land.
- Section 4 - substitution of “subsidies” with “tenure grant” to address the challenge of providing more secure long term tenure options vs shorter term subsidies in current Act. - thus would address two of the current problem areas in the Act - i.e. it would enable occupiers and former occupiers to acquire alternative accommodation and also compensate owners for providing accommodation and services to occupiers.
- Section 6 - to provide for the maintenance of dwellings of occupiers.
- Section 6 - to allow for the erection of tombstones and to allow occupiers and former occupiers to perform rites thereon.
- Amendments to Sections 9, 10 and 11, relating to evictions, mediation and a process regarding evictions. The amendment in of Section 9 meant that only lawful evictions would be allowed (only a court can approve an eviction). The amendments of Sections 10 and 11 provided for compulsory mediation before eviction could occur.
- Section 12 - amendments to address the challenge of evictions carried out under unreasonable weather conditions. A court would determine what reasonable weather conditions were and evictions could then only be carried out under reasonable weather conditions.
- Insertion of Chapter IVA to create the establishment of structures to assist and advise the minister in implementation and management of aspects in the Bill. Two new bodies would be created - LRMB (Land Rights Management Board) and LRMC (Land Rights Management Committee)
Adv Ramasala advised that socio-economic impact assessments were conducted and that these supported the amendments - this included financial implications and was supported by National Treasury as well. He said that the amendments would have no structural impact on the Department and that it would be funded from baseline allocations.
Ms E Prins (ANC, Western Cape) wanted to know who would serve on the LRBM and LRMC, as people impacted by evictions needed to know who to contact.
Mr Smit asked for clarity on two proposed amendments - the definition of “occupiers and “reside”. He also wanted to know who qualified as family members.
Ms Koni wanted more detail regarding what was meant with “compensation for loss of rights”. She also wanted to know if there were provisions for previous occupiers to perform burial rites (not just for current occupiers).
Mr Mlambo commented that these were the same questions addressed to the Department during a previous Committee engagement.
Mr L Gaehler (UDM, EC) wanted to know if the new provisions would include adequate time for occupiers that were evicted (legally) to vacate the land. Often, evictions were unreasonable and people were forced to leave immediately
Adv Ramasala replied that the Bill was very clear on who would serve on the LRMB and LRMC (see clauses 15B and 15H). A process was already under way so that DRDLR would be ready to implement the structures once the Bill was enacted.
Regarding the definition of “family” he explained that the changes were included to address the challenge of only the nuclear family (father, mother and children) being seen as family by (some) land owners. The new definition attempted to include all the family members that were dependent on the occupier. The term “reside permanently” also included dependents who did not live on the farm - e.g. someone who was born and raised on the farm, but was now working elsewhere. The farm was regarded as their home and they would return there after work - over weekends or during holidays.
Loss of Rights meant that occupiers who were evicted (legally) would have a right for compensation for expenses incurred to renovate and build structures on the dwelling that it was being evicted from.
He said that any person - including those that no longer lived on the land had a right to perform burial rites.
Adv Ramasala advised that the issue of occupiers being given time to relocate would be addressed in new legislation, as the court procedure in the Bill balanced the rights of land owners and occupiers/farm dwellers. Typically an eviction process would include the following steps - notice to evict, notice served on occupier, followed by court proceedings, opposition to eviction, mediation before the court made a determination.
The Chairperson asked if law enforcement agencies were aware of the changes and understood the new process. Based on past experience, the police were not always helpful and seemed to favour land owners over occupiers. He also wanted to know how affected people on farms would access the new structures (LRMB and LRMC).
Ms Prins wanted to know if there was any recourse for farm dwellers who had the graves of deceased relatives demolished (by farmers for agricultural purposes).
Mr Smit wanted clarity on three issues -
- how the term “occupier” related to people residing on the land before 4 February 1997 and afterwards?
- did the term “reside” mean one had to physically live on the land or were there other instances where the term could also apply?
- was there any unintended consequences that could result from providing compensation to farm dwellers (once evicted)?
The Chairperson commented that it would be good if there was some sort of registration process so that bona fides farm dwellers were not prejudiced by those who were just squatting on the land. He emphasised that there needed to be some form of control and order (good governance) to ensure that the process functioned in an orderly manner to ensure that those living legally on the farms were treated in a humane way.
Ms Labushcagne wanted clarity on two issues related to evictions - she wanted to know how the mediation process would work, who would train and fund the mediators and if they were registered and or certified. She also required clarity on the tenure grants, if the funds had been budgeted and how it would be managed.
Ms Nxasana responded that ESTA did not prevent evictions; it merely regulated the eviction process so that the latter could occur within prescribed law. ESTA gave the occupier a right to reside on the land owners land. She confirmed and repeated some of the comments made Adv Ramasala, i.e that ESTA balanced the rights of land owners vs. that of land occupiers - but that it was specific and referred to rural or peri-urban agricultural land only.
Ms Nxasana clarified that “family” differed from other norms in that in ESTA the term included the clan of the land occupier. The new structures (LRBM and LRMC) were introduced to make a real difference “on the ground” - to include people in these structures who could make a difference and would include local magistrates, land owners, civil society, enforcement agencies and local people.
Tenure grants were based on the value of the land being occupied to enable proper compensation for both parties being affected - land owners and land occupiers. The grants were ring-fenced to provide land and services. Alternative accommodation meant that it could not be less than what the evicted occupier had before.
There had to be mediation before a land owner could evict a land occupier - a land rights mediation facility - funded by government would manage the process. Current services in this regard were being provided by an organisation outside government to aid the independence of the process.
There were other improved provisions governing evictions, e.g. if the main occupier died those left behind had to find alternative accommodation within 9 months.
Adv Ramasala continued with responses to queries raised by the Committee. He said that the violation of graves was a criminal offence and that family members could approach the courts or police for help.
Regarding the rights of land occupiers before and after 4 February 1997 - he said that those before that date had stronger rights than those who occupied the land after 4 February 1997. He advised that Section 6 of the principal Act contained provisions that explained this in detail.
The registration of farm dwellers could be done via agreements between the farm owner and the farm dwellers.
The Chairperson said that the Committee could now proceed to make a determination on whether to accept or reject these amendments. (As this was a s.75 Bill there was no need to get input from provinces).
Committee members then proceeded to vote on the seven amendments.
All amendments were accepted and supported by all Committee members present, except the one on the first amendment that dealt with the definition of “family”. All ANC members as well as the members from the UDM and EFF supported the clause while the two DA members present, abstained. The amendment was accepted as those supporting it were in the majority.
All seven amendments in the Bill were therefore accepted by the Committee and the Chairperson read the formal statement indicating that that the Committee had agreed to the Bill with the amendments.
The Committee Secretary advised that he would forward the amendments to the State Law Advisors Office who would draft the final amendments.
The Committee approved the minutes of the previous week’s meeting.
Mr Smit asked if he could raise an issue with the Committee in private - after the Department and members from the public had left.
The Chairperson adjourned the meeting at 12h00
(the DRDLR delegation and general public left and Committee members remained behind to discuss issue to be raised by Mr Smit)
The meeting was adjourned at 12h55.
- Extension of Security of Tenure Amendment Bill [B24B-2015]
- Public submissions on the Extended Security of Tenure Amendment Bill
- Committee report on Tenure security of farm workers and dwellers
- Extension of Security of Tenure Amendment Bill presentation by DRLDR
- Department of Rural Development and Land Reform: Lawful Evictions
- Department of Rural Development and Land Reform: ESTA Comments and Responses
- Constitutional Court of South Africa judgement
- Department of Rural Development and Land Reform Green Paper on Land Reform, 2011
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