Briefing on Court Decisions on Land Reform Labour Tenants Act, 3 of 96 & the Extension of Security of Tenure Act, 62 of 97

Meeting report

AGRICULTURE & LAND AFFAIRS PORTFOLIO COMMITTEE
20 October 1999
BRIEFING ON COURT DECISIONS ON THE LAND REFORM LABOUR TENANTS ACT, 3 OF 96 AND THE EXTENSION OF SECURITY OF TENURE ACT, 62 OF 97

Documents handed out:
Legal Policy Analysis of Judgements Handed Down Under the Extension of Security of Tenure Act
Table of Labour Tenants Act Provisions Judicially Considered

SUMMARY
The Committee agreed to wait for an Options Document from the Minister before deciding on a course of action to ensure clarity with respect to the definition of a Labour Tenant.

MINUTES
The Chair, Adv. Holomisa (ANC), started the meeting by indicating that at the end of 1998 the Committee had heard evidence on research conducted into the success of the Land Reform Labour Tenants Act (LTA). The Committee had requested the Department of Land Affairs to bring a document outlining the options to improving the implementation.

Land Reform Labour Tenants Act
Ms Vuyi (Department of Land Affairs) stated that the Options Document was with the Minister, who would need to approve of the options before it could be brought to Parliament. Substantive amendments to the legislation were envisaged, and would be brought to Parliament in 2000.

Mr Roux (Department of Land Affairs) provided the Committee with a general overview of the LTA. The Act was promulgated in 1996, and aims to protect labour tenants from unfair evictions. Legal processes were put in place before evictions could take place. A long-term solution to the vulnerable position of labour tenants was provided for through a government subsidy, the Settlement Land Acquisition Grant, to the value of R16000.

The ESTA legislation aimed to cover a larger group of people, including farm workers and those staying on land not belonging to them with the consent of the owner. Mine workers and brick workers are examples of other groups who could be covered by the Act. The Act is estimated to apply to between 1 to 2 million people.

Court Rulings
The key issue for the briefing on the LTA was an examination of the key court cases dealing with the definition of a Labour Tenant (LT). The Land Claims Court and the Natal High Court had interpreted the definition of the Act differently, creating confusion. As neither court was superior to the other, there was no simple solution. The Act provides certain rights to a LT if it can be proven that they fall under the definition. The Act provides a statutory defence to people facing a court eviction order.

The definition of a LT in the Act contains four components. The first requires the person to be residing on the farm. The second requires the individual to be providing labour in return for cropping or grazing rights. The third requires the parents or grandparents of the individual to have been a LT. The fourth states that the individual can not be a farm worker.

The Land Claims Court in its first judgement decided that all four requirements were necessary for an individual to be declared a LT. The Natal High Court, in two different judgements, stated an individual qualified if any of the following were met: the first and second, the first and third, or only the third. The fourth condition would have to apply to each. If all the conditions were required to be met, then the beneficiary class could cover around 20 000 - 30 000 people. If only the third and fourth conditions were required, then the beneficiary class could be as much as 100 000 people.

A further dispute had occurred over whether the condition requiring parents or grandparents to be LTs on the same farm or at least for the same owner. As labour tenants are an extremely mobile group, moving often, then the interpretation could have major impacts on limiting the beneficiary group.

Mr Roux noted that a process was underway to look at the disputes. The research into the implementation of the Act had been studied, and options were being considered. While this process was in progress, a previous case had been taken to the Supreme Appeal Court. The appeal judgement in March 1999 had stated that the Land Claims Court ruling requiring all four conditions was the correct version. The judgement went further noting that to decide whether an individual was a LT, a historic review would have to be undertaken looking at the value of the crop or grazing rights versus the payment in kind or cash an individual had received. If the crop or grazing value was higher, taking into account the varying value depending on good or bad agricultural years, then the individual would be considered a LT.

As a result the department's and other institutions capacity to advise potential beneficiaries had been severely affected. The Department had therefore amended the Options Document, which was currently with the Minister. Ultimately, the Minister and the Committee would need to decide whether to leave things as they are with the Supreme Appeal Court's interpretation, or to amend the legislation.

Questions from the Members
Mr Gininda (ANC) noted the contradictions between the courts, and asked whether the Department believed it would make a difference to make amendments, as the courts' decisions could not be challenged. He asked, therefore, what the best option was in terms of ushering in a better life for all.

Ms Vuyi Nxasana (Department of Land Affairs) replied that amendments would be coming to the Committee as an act of political intervention. Two options existed. The first option was to clarify the intentions of the Act, to aid interpretation. The second option was to amend the wording of the definition.

Mr Gininda followed up by stating that even if amendments are made, the issue will still return to the courts, where the judges will have their own interpretations. Even if amended, the situation would not be solved, as the courts will still decide. Therefore making amendments was a futile effort.

Mr Roux replied that the Department had proposed to the Minister a variety of options, which the Minister would still have to decide on. These included technical amendments, to carefully and simply rephrase the definition, minimising the court freedom to interpret. The challenge would be to find a draft for a simple definition. The second option was to possibly merge the two acts, to create a single broader class of beneficiary.

The Chairperson asked whether the new interpretations limited the coverage to fewer people. Mr Roux replied that that would depend on the initial aim of the legislation. If the legislation had meant to make all four requirements necessary, then the reading would not limit those who would be covered. However, if the intention had been to have a combination of some of the four requirements being sufficient, then the court interpretation would limit the beneficiary group.

The Chairperson stated that surely if only the first requirement was sufficient, then any decision requiring more than one requirement would limit the beneficiary group. He asked whether the second part of the Supreme Court ruling, which effectively allows an individual who was not a LT on the date specified in the Act to become a LT, thereby extending coverage of the Act to a broader group.

Ms Nxasana replied that this would not be the case, as the Act defines who is a LT, and the process through which LT can access the grants. While the ruling may create the opportunity for more people to become a LT, the process for issuing grants was not extended to cover the new group.

Mr van Niekerk (NNP) noted that the definition was the key issue, and the Options Document would be presented to the Portfolio Committee at some time in the future.

Mr Schoeman (NNP) noted that if the Acts were combined, clear distinctions would be made between LTs and farm workers, and the issue would be solved. All accepted that the LT system was a bad one and that new LTs were not desired.

Mr Roux replied that considering the level of detail the Committee was getting into, it would be better to wait for the Options Document. In response to Mr Schooman, the combining of the two Acts would not make a clear distinction, but would rather make a single large group out of the two separate groups.

Mr Hanekom (ANC) agreed that without the Options Document the committee was pre-empting the discussion. The Committee would ultimately need to decide which way to go. He noted that the LTs are a poor, landless and vulnerable group, which was the exact group the land reform program needed to address. If the LTs were to benefit, parliament needed to ensure the legal side was right. He asked whether the Department had considered using a different institutional route to the courts to decide who was a LT. Options could include the Director General, or possibly a legally appointed body.

Ms Nxasana replied that the Nomfundo Research Report had included an option of using an alternative institutional route. However, people have a right to go to court, and the legal side needs to be sorted out.

Mr Gininda commented that even if the two Acts were merged, it would not solve the problem of having the courts being able to decide. The problem remains that the court decision is final. If a judge could not be criticised, then it was a bad situation. He needed to have confidence and respect for the person, and queried how this was possible when the courts issued bad sentences for rapists, and allowed people's homes to be destroyed through court orders. He had lost confidence in the courts. The system of justice was run by people who had no interest in the people. The issue needed to be taken out of the court hands, as they did not bring justice to people.

The Chairperson asked members to focus on the issues at hand, and to look at the decisions of the courts in terms of the acts before them. Generalisations would not help.

Mr Botha (DP) noted that the key aim of looking at the LTA was to achieve justice and certainty. Rather than taking it away from the courts, the Committee must ensure that there is clarity in the definition.

Mr Masithela (ANC) noted that these were hard issues and people had strong opinions. The chair needed to communicate with the Minister on the issues concerned, and the Minister needed to come to the Committee with options. The current discussions were pre-empting the work ahead.

Mr Van Niekerk noted that the rights and objectives of the Act were not in dispute, but only the method. Parliament was responsible for producing clear legislation to the courts to interpret.

The Chairperson asked to what extent people had applied under the Act for the grants. Mr Roux noted that 17 projects, averaging at roughly twenty people per project, had been approved. A further 200 or more were with the Land Claims Court.

Extension of Security of Tenure Act
Mr Roux proceeded to brief the Committee on the Extension of Security of Tenure Act (ESTA), using the briefing document distributed to the committee

The Chairperson asked whether the Options Document dealt with the issues raised in connection with ESTA. Ms Nxasana replied that the Options Document only looked at the LTA. The burial issue was currently with the Supreme Court, and plans to deal with the other ESTA issues would be taken from there.

The Chairperson reminded the Committee that there would be hearings on the international trade agreements on Monday. The meeting was adjourned.