Stats SA presentation (Confidential document)
Positive changes that had resulted in an improvement in conditions for farmworkers in South Africa had largely been independent of the state. This was relayed to the Portfolio Committee on Agriculture, Land Reform and Rural Development and the Portfolio Committee on Employment and Labour when the two Committees met for stakeholder engagements on the working and living conditions of farmworkers from various organisations and individuals.
Stats SA stated that access to improved water sources, electricity and sanitation was lower in farm areas than urban areas. However, the official unemployment rate in farm areas was 18.7% during quarter three of 2021, which was significantly lower than the 33% in urban areas.
The Association for Rural Advancement (AFRA) talked about the Labour Tenants Act of 1996 and the problems that arose from it. Its purpose was to protect the current occupational rights of labour tenants, and the key aspect was around the acquisition of land ownership. The Land Claims Court, which became the custodian of the rights and protection of the Act, had been criticised for delays, escalating costs, and the challenge of securing court dates, venues and access from rural areas. The implementation of the Act should have resulted in major reductions in evictions. The legal provisions in the Act firmly protect labour tenants from arbitrary evictions. Despite this, it did not appear to have made a positive impact in practice.
Phuhlisani NPC said key trends in the agricultural sector over the last three decades had included market deregulation and trade liberalisation, and dramatic cuts in state subsidies and support for social investment on farms in the areas of housing, services, health and education. The five main problem areas for farmworkers were structural barriers to property ownership and recorded rights, tenure insecurity and the absence of alternative off-farm housing, unclear housing standards on farms, unregulated hostels on farms, and inadequate access to services. It suggested that amendments to the Municipal Finance Management Act would permit closely specified and audited public expenditure on privately owned land for the purposes of ensuring basic service provision and improved housing standards.
Human Rights Watch said farmworkers were vulnerable to eviction, with no alternative accommodation. Farm dwellers told stories of intimidation and tactics by farm owners such as cutting off electricity and limiting water supplies. There was also gender discrimination, with farmers not wanting to employ women when they were pregnant, and avoiding the provision of maternity leave required by law. It urged more robust monitoring on an ongoing basis to establish what was going on and hire more labour inspectors to increase their monitoring capacity.
The South African Human Rights Commission said it was trying to deal with the challenges facing farmworkers in the Western Cape. It had raised the matter of the Extension of Security of Tenure Act (ESTA) with the Justice Department, as it was not helping farmworkers. There were challenges involving access to farms and the provision of services, but even though this was the case, there were still good farm owners who had come up with good programmes.
A University of Cape Town researcher shared the results of an International Labour Organisation (ILO) study on farm workers’ living conditions in South Africa which had been conducted in 2014 because of alleged widespread abuse of workers on Western Cape farms. The study had found fairly good compliance with labour legislation, and had not found any evidence of slavery, nor of workers getting paid in alcohol. On most sites workers got annual or pro-rata leave, received sick leave, did not work excessive hours, received payslips and were paid overtime. However, the conditions of temporary or seasonal workers were inferior. They were less likely to be paid overtime, sick leave and annual leave than permanent workers. The sample was small, so this was not a definitive overview of the agricultural sector. According to their snapshot, it also seemed that private social standards were having a positive impact on working conditions on farms. Though the Department of Employment and Labour was supposed to enforce labour and health and safety regulations on all farms, it remained seriously under-staffed, stretching its ability to enforce legislation.
A researcher from the University of Nairobi took the Committee through legislation recently introduced by the Kenyan government to regulate the fresh vegetable supply chain, which impacted the country's farmworkers and small farmers. KS 1758 had been introduced as the code of practice for the horticultural industry in an attempt to avert another maximum residue level crisis and save its reputational risk because, over the years, Kenya had developed a global leader status and did not want to lose it. KS 1758 had been legislated in 2019 because the country did not want to go the way of private voluntary standards.
Members asked Stats SA if the multi-dimensions of poverty included food security, how the 2020 estimates had been established and how accurate they were; wanted to know from AFRA how many outstanding labour tenants’ claims there were in SA, and if the AFRA report was inconclusive because farm dwellers were not informed about the public hearings; asked Phuhlisa how many ESTA cases were currently in the courts. They also questioned whether skilled white workers working on farms could be classified as farm workers; if a master and servant relationship still existed on farms, and what could be done if this affected the conditions of farmworkers; how the unionisation of workers affected their relationship with farm owners; whether the presenters had addressed the matter of the education of the children of farmworkers, because many farm workers had moved to towns for the sake of their children’s education; and how one could ensure that smallholders became part of the value chain.
Statistics SA overview of farm living and working conditions
Ms Nozipho Shabalala, Acting Deputy Director-General: Population & Social Statistics, Stats SA, briefed the Committee on coordinated oversight of the living and working conditions on South African farms. The population of SA was estimated in 2021 at 60.1 million, of which 42% were residing in farm areas, while 63.5% were found in urban areas.
Looking at service delivery in farm areas, close to 15.8% of dwellings in farm areas were informal, with an additional 16.4% of traditional dwelling types, while 83.1% in urban areas lived in formal dwellings. Access to improved water sources in farm areas was still lower, at 83.2% than the SA average of 98.1%. This meant almost 17% of those in farm areas did not have improved access to water sources. On access to electricity, 82.0% of households in farm areas had access to electricity, as opposed to the 94.5% of households in urban areas. There had been an improvement of 73% in access to improved sanitation in farm areas between 2019 and 2020, with 83.2% having access to improved sanitation.
When it comes to income, inequality and poverty dynamics, the South African Multidimensional Poverty Index (SAMPI) provides a holistic view of poverty. It has four dimensions: health, education, living standards and economic activity. Each dimension had got indicators that were used to classify a household on whether it was deprived in that particular area or not. The results of SAMPI of 2001 and 2016 indicated that 17.9% of households in 2001were multidimensionally poor, while in 2016 the figure had decreased to 7%. This was at the national level. However, when this was disaggregated by type of settlement, 4.3% in urban areas were multidimensionally poor as opposed to the 9.5% of those on farms.
The average annual income per person was R26 000 per person in farm areas compared to R60 000 per person in the urban areas. Farm areas had the lowest access to a range of household assets. Salary was the main source of income in farm areas.
There were about 660 000 fewer people employed in farm areas during quarter three of 2021, compared to quarter two of 2021. 14.3m people were employed, and 7.6m were unemployed. The official unemployment rate in SA was 34.9%. Close to 820 000 people were employed within farm areas, and 55% of those employed on farms were in the agricultural sector. More than half of those employed in farm areas were in elementary occupations (58%). The official unemployment rate in farm areas was 18.7% during quarter three of 2021, significantly lower than in the urban areas, which was at 33%.
During quarter three of 2021, the female unemployment rate in farm areas was at 26.1%, significantly higher than among their male counterparts. The majority of people on the farms had less than matric. 58.2% of women aged over 25 years had achieved less than matric as their highest educational level.
Association for Rural Advancement (AFRA) on labour tenancy
Ms Laurel Oettle, AFRA Director, told the Committee that much had changed since 2017, while the history remained the same. The current and future trajectories were in a very different and critical place for labour tenants. Labour tenancy discourse was historically and currently complex and controversial. Labour tenancy had been under pressure in the 1950s from the apartheid government. Attempts had been made to abolish it for a number of reasons -- it was not providing sufficient labour due to increasing commercialisation, and not addressing land shortages of African tenants. The Nel Commission of Enquiry (1961) had recommended it be replaced with waged labour. This had failed due to the continued need for cheap labour on farms, especially less modernised farms, but had led to increased vulnerability and exploitation for labour tenants. Standard contracts no longer applied, and farmers made own their own rules and conditions and evicted when they were not satisfied.
She also took the members through the Labour Tenants Act of 1996. Its purpose was to protect the current occupational rights of labour tenants, which included land use, as vested on 2 June 1995. It prohibited evictions without legal consultation and court permission. They had to be ‘just and equitable’.
Illegal eviction may lead to a fine, or two years in prison. The key aspect was around acquisition of land ownership. Section 16 provided labour tenants with an opportunity to lodge claims to own land they were entitled to occupy or use in terms of the Act. The application period had ended on 31 March 2001.
Problems arose from the Act. The Land Claims Court became the custodian of the rights and protection of the Act. It was criticised for delays, escalating costs, and the challenge of securing court dates, venues and access from rural areas. The Act was adversarial in nature and was triggered by the lodging of claims. Alternative approaches to dispute resolution -- arbitration and mediation -- had been referenced extensively in Act but were not implemented.
The implementation of the Act should have resulted in a major reduction in evictions. The legal provisions in the Act firmly protected labour tenants from arbitrary evictions. Despite protections, it did not appear to have made a positive impact in practice. The rigid definition of labour tenant contributed to 'legality,' but increased tenure insecurity.
Concerning the constitutional aspects of the Act, the contradiction of rights in Section 25 of the Bill of Rights in the Constitution, deals with the right to property as a fundamental right. The property clause was recognised as a 'two-pronged' mechanism for 25(1) landowners: protection from deprivation of property; and 25 (6): tenants -- tenure of land legally insecure due to discriminatory laws and practices entitled to secure tenure or suitable redress. A labour tenant claim, in accordance with the Labour Tenants Act, illustrated these tensions, and there had been violations of constitutional obligations in failing to implement the Act.
Regarding the current status, applicants had argued successfully for the appointment of a Special Master for Labour Tenants (SMLT) to address the challenges. This would be an independent person appointed by and reporting to the court to assist in the implementation of a complex order. The Department and Minister had made a renewed commitment to labour tenants and started to take action and invest, but the challenge was enormous. They were now working closely with the SMLT. The SMLT stated that his office “seeks social impact investors and other partners to support the resolution of long outstanding labour tenants' land claims across South Africa.”
The Land Tenants Act had unintended consequences. On-farm conflicts between claimants and landowners resulted in the latter being in a superior position in terms of resources and power. There had been increasing numbers of evictions post-1994 because of the failure to implement the Act to protect labour tenants. Commercial farming groups argued that the Act created poverty traps. The uniquely prescriptive nature of the Act undermined the possibility of labour tenants making successful land claims when conflict or obstacles arose.
Ms Oettle stated that if alternative implementation models were adopted, there was strong evidence the Act could help address rural poverty, unemployment and spatial inequality as intended, because the National Development Plan (NDP) had identified small-scale farming development as a key driver for rural employment and rural economic development. Labour tenants had generations of skills and success in small-scale farming. The redistribution of white-owned commercial farmland to black small-scale farmers would help to drive agrarian transformation.
For the full implementation of the Act, Parliament had recommended, amongst other things, effective budget allocations to the Office of the Special Master (OSM) and the provincial-level Department of Land Reform and Rural Development (DALRRD) offices to fully implement the current court-approved labour tenant claims resolution project. It had also recommended that support should be given to the DALRRD and civil society to revive the multi-stakeholder platform on land governance that had been committed to in 2017. A further recommendation was that there should be strong support for fast-tracking effective alternative dispute resolution mechanisms that were available in law and policy, but under-utilised. This would speed up change processes while building positive relationships that could lead to better rural safety and a reduction in crime on farms; improved and more diverse forms of agriculture, which would not only increase food security but climate change adaptation capacities and resilience against future shocks such as COVID-19 and the July 2021 unrest; and increased employment opportunities as labour tenants became landowners and farmers. This would require effective capacity building, infrastructure development and post-settlement support. Lastly, there was a need to create an enabling environment for land donations from farmers.
Phuhlisani on land reform and integrated rural development
Dr Rick de Sagte, Senior Research Associate, Phuhlisani NPC, presented an analysis and recommendations on land tenure and living conditions on South African farms. Key trends in the agricultural sector over the last three decades had seen, amongst other things, market deregulation and trade liberalisation; and dramatic cuts in state subsidies and support for social investment on farms, such as housing, services, health, and education.
Despite these overarching trends, it was important to record that the diverse agricultural sub-sectors had different stories to tell which revealed different labour intensities and employment trajectories. Likewise, standards of housing and levels of service available to farmworkers differed markedly across sub-sectors and provinces. Policies on tenure security, evictions, land reform, access to housing and services, alternative accommodation, gender, youth, wages and employment had all been pursued in isolation from each other.
The White Paper on Land Policy envisaged that farmworkers would be amongst the primary beneficiaries of land reform. In practice, land reform increasingly displaced farmworkers in favour of elites. The silences in housing policy with respect to farmworker housing had been a persistent feature of the democratic order. Old order subsidies had been withdrawn, and subsequent tax deductions allowable for farm owners to provide employee housing provisions had also been withdrawn. The Rural Foundation, which had supported farm housing and social infrastructure development, had been disbanded.
The Extension of Security of Tenure Act (ESTA) Section 4 made provision for grants for on and off-farm settlements for farmworkers. For a short period (2007-2009), the Department of Land Affairs had made available the Settlement and Production Land Acquisition Grant (SPLAG), which was intended to provide land for both settlement and agricultural production. National housing policy went on to explicitly discourage agri-village establishment as unsustainable and posing a risk of creating rural poverty traps.
There had been a concerted effort to raise household incomes of workers in the industry. Increasing numbers of farmworker households earned above the national housing subsidy ceiling of R3 500. Where combined household income was above R3 500 per month, eligibility to receive a housing subsidy and obtain a reconstruction and development programme (RDP) house fell away. Farmworker households earning above the subsidy threshold were able to access only the Finance Linked Individual Subsidy (FLISP), a market segment with few real opportunities. The combination of these factors had had the perverse consequences of driving up informality on the fringes of rural towns.
Five key problem areas for farm workers had been identified. These were the structural barriers to property ownership and recorded rights, tenure insecurity and the absence of alternative housing off-farm, unclear housing standards on farms, unregulated hostels on farms, and inadequate access to services.
Proposals had been generated through the social dialogue platform for decent work in agriculture on what could be done. This was a Western Cape initiative that had brought together a whole range of stakeholders like labour unions, organised bodies, commodity groups and organised agriculture, farmworker organisations, government representatives and civil society to look at practical solutions to improve the conditions of farmworkers. The initiative was funded by the employment tax incentive (ETI), focusing on the fruit and wine sectors of the Western Cape.
With regard to property rights, it was recommended that people who lived on farms would have options that would enable them to obtain homeownership. Section 4 of ESTA would be implemented to enable on-site and off-site developments, enable the occupiers, former occupiers and other persons who need long-term security of tenure to acquire land or rights in land, Section 4 subsidies would become available, and the Department of Rural Development and Land Reform would allocate a dedicated budget to meet its obligations in terms of the Act.
The criteria for subsidy eligibility would correct factors marginalising farm dwellers, and this process would consciously address the rights of households headed by women. Policies would be developed which would enable the development of well-located rural hamlets within municipal spatial frameworks and would encourage investment in public-private housing schemes for farm dwellers. New forms of recorded rights would be developed to address the current failings of the deeds registry system, which remained expensive and inaccessible to poor households.
Concerning tenure security, case law would continue to clarify the ESTA right to family life of farm workers and dwellers, and clarify the balance between this right and the right of the owner. State grants and tax benefits would be available to support employers to comply with Section 8 of ESTA, which gives responsibility to the owner to continue to accommodate retired farmworkers who qualify as long-term occupiers. The rights of farm dwellers residing on properties acquired for land reform would be protected and would be adequately compensated if they relinquish their ESTA rights to tenure security on the property.
Regarding alternative accommodation, each municipality would have adopted an emergency housing and basic services policy which ensured the availability of serviced sites. This policy would ensure that ‘temporary relocation areas’ were well located. Regarding housing standards, the legislation would specify how these standards were monitored and enforced and set out the conditions under which the Department of Human Settlements, the Department of Labour and local municipalities may conduct inspections and issue compliance orders. Subsidies would be made available as part of the revised farm resident housing assistance programme, which incentivises employer adoption.
On on-farm hostels, a set of clearly specified national standards would regulate the provision of hostel accommodation on farms. On-farm hostel redevelopment would be integrated into the national housing code. Subsidies would be made available as part of a revised and practicable farm hostels redevelopment programme. The industry codes would be updated to reflect national farmworker hostel minimum standards.
Concerning basic services, amendments to the Municipal Finance Management Act (MFMA) would permit closely specified and audited public expenditure on privately owned land for the purposes of ensuring basic service provision and improved housing standards. A farm household infrastructure grant would be availed to fund rural housing and services on farms, and a model by-law would be prepared for the municipalities to require farm owners to register and provide basic occupancy statistics for on-farm accommodation on an annual basis as a means to provide data to ensure adequate service provision to farms, including access to health care, schooling and rural public transport. Tax incentives would be developed by the South African Revenue Service (SARS) which would reward investment by farm owners in service provision and social infrastructure on farms. Municipalities, in conjunction with the Departments of Home Affairs and Social Services, would jointly enable farm dwellers to obtain identity documents and access social grants.
Finally, with regard to making the change, the challenge was to craft real-world policies and jointly design and implement programmes as part of functional intergovernmental and social partnerships at a district and local municipality scale. Where positive change had happened in the improvement of the conditions of farmworkers, this had largely been independent of the state.
Human Rights Watch on farm workers' challenges
Dr Juliana Nnoko-Mewanu, Senior Researcher on Women and Land: Women’s Rights Division, Human Rights Watch, informed the Committee that the research she was presenting had been done in 2011. She had confined herself to the findings and said she would not be in a position to talk about new developments.
The organisation had found that there had been evictions and poor provision of houses on farms. The situation was depressing, especially for a person like her, who championed housing rights. The houses lacked sanitation and were not good for protecting people against wintry conditions.
When they were doing the research, there was a lack of clarity as to who was responsible for the provision of houses. Farmworkers were vulnerable to evictions with no alternative to accommodation. Farm dwellers told stories of intimidation and tactics by farm owners, like cutting electricity and limiting water supplies.
Government officials failed farm workers who were facing eviction without due processes or compensation, and when they were confronted by racist, aggressive actions from farm owners.
Another finding was around occupational health and safety. After failing to provide proper safety equipment, farmers used other ways to mitigate the workers’ exposure to pesticides, for those working directly and indirectly with pesticides. Sometimes they explicitly denied farm workers' requests for safety conditions, routinely refusing to grant legal sick leave to workers without first receiving a medical certificate. That depended on the number of days the worker was asking for. Farmers were refusing to give workers toilet hand-washing soaps and drinking water while working -- things that were contrary to the law.
Other conditions of employment focused on fair labour practices like the minimum wage, particulars of employment and sick leave. It was found that there was a lack of contracts, improper deductions, lack of benefits, and a greater likelihood of physical abuse.
The study also found that there was gender discrimination. Pregnant women faced discrimination, with farmers not wanting to employ them when they were pregnant and even dismissing them when they were pregnant. They were avoiding the provision of maternity leave as required by law.
On the freedom of association and formation of a union, they found that farm owners were putting obstacles against farmworkers forming a union, persuading workers to resign from unions, and union members receiving poor treatment from the farm owner compared to non-union members.
All these issues focused directly on the farmers or farm owners, and of course the business's responsibility to ensure their operations did not negatively affect either the communities or the workers themselves. Where there was law, businesses need to follow that law. On the side of the government, it had been found that there was a lack of monitoring of labour conditions and enforcement of laws related to labour, housing and evictions. There was an issue with labour inspectors’ capacity in terms of numbers and how effectively a labour inspector could adequately monitor what was going on at farms, given the lack of human resources but also the policies in place that could limit how much of an assessment could be done in an ad hoc manner by labour inspectors.
Dr Nnoko-Mewanu said the main recommendation was that there should be greater coordination within the government across all of its agencies to ensure the living conditions of farmworkers were bettered. There should be more robust monitoring on an ongoing basis to monitor what was going on, a focus on labour inspectors’ capacity, hiring of more labour inpectors, and transparency on how this was done. Finally, there should be clarity on the responsibility for the millions of farmworkers and dwellers in South Africa.
She said that even though she did not have much information on agri-villages, there had been concerns around their establishment. All of these concerns would depend on how the government effectively put agri-villages in place, the type of services that accompanied them, and ongoing monitoring to ensure the goal was attained.
Human Rights Commission on Western Cape farm workers' challenges
Rev Chris Nissen, Western Cape Regional Commissioner, South African Human Rights Commission, said they were trying to deal with the challenges facing farmworkers in the Western Cape. He had raised the matter of ESTA with the Justice Department, as it was not helping farmworkers. The challenges were around access to farms and the provision of services. Even though this was the case, there were still good farm owners who had come up with good programmes.
He said the clashes in Robertson were between the locals and non-nationals because labour brokers were taking non-nationals for labour around those farms. Zimbabweans had been chased out because they were perceived to be taking the jobs of the locals. He believed all lives mattered since there were hearings around farm killings during 2016. The Commission had engaged with the South African Police Service (SAPS) to protect the farmers and workers. It had come up with a programme on the rights of farmworkers and those of the farm owners. He would welcome written questions from Members and would later send a written submission to points raised by the Committee. He sincerely apologised for not preparing a presentation, because he had been informed very late about it.
UCT researcher on results of ILO study
Ms Margareet Visser, Researcher: Labour, Development and Governance Research Unit, University of Cape Town (UCT), shared the results of an International Labour Organisation (ILO) study on farm workers’ living conditions in South Africa and the key trends, which indicated the emergent issues and underlying and structural problems. This study had been conducted in 2014 because of alleged widespread abuse of workers on Western Cape farms and labour protests in De Doorns in November 2012. She also briefly touched on the 'Shifting South' project which had looked at the impact of shifting end markets on producers and workers. It was a collaboration between the Universities of Manchester, Nairobi and Cape Town.
The terms of the study asked the researchers to identify structural factors that impacted working conditions. The researchers had identified two regulation streams that impacted working conditions: the one was public, while the other was private. In terms of public regulation, agricultural policy had changed significantly since the mid-1990s. Government had extended labour and tenure legislation in full to farmworkers. Previously, they had been excluded from key legislation, such as the right to strike. Due to the advice and pressure from the World Bank and the World Trade Organisation (WTO), the government had also deregulated the sector, which had led to the closing of marketing boards that diminished producers’ collective bargaining power in key markets. The state had also rolled back previous extensive support to producers, with the result that the playing field between SA producers and their competitors was highly uneven.
Private regulation also impacted working conditions on farms supplying supermarkets, as they had to negotiate individually with these powerful, consolidated players. Most supermarkets enforced their own strict product and food safety standards upon their suppliers, which included the producers. Food safety standards entailed codes, including a system identifying and monitoring Hazard Analysis Critical Control Points (also known as HACCPs). International supermarkets, but also Woolworths, required that HACCPs be backed up by a quality management system such as the British Retail Consortium (BRC) food safety standards.
International supermarkets and Woolworths also required that all their producers comply with private social standards, such as the WIETA and SIZA. This was very useful from government’s point of view because the Wine and Agricultural Ethical Trading Association (WIETA) and Sustainability Initiative of South Africa (SIZA) standards largely reinforce the South African state’s labour, health and safety regulations. However, at the time of their latest research for the Shifting South project, neither Shoprite nor Woolworths enforced the WIETA or SIZA code. Spar and some Massmart stores also required SIZA certification on some of its in-house brands, packed fruit and vegetables.
While supermarkets enforced strict standards on producers, with a few exceptions, it was producers that had to meet the costs of implementing rising quality standards, often including expensive infrastructure changes or switching to new packing formats, or paying for audits against supermarket standards and absorbing supermarket specials such as BOGOF (buy one get one free). Importantly, the risk of product spoilage remained that of producers until the fruit was sold by the final customer.
Supermarkets also negotiated hard on price, despite the fact that producers had to pick up a bill for the costs of rising standards. For instance, during the Capturing the Gains research project, it was found that of the final retail price paid for a carton of SA table grapes, 42% went to the retailer and only 18% went to producers if they did not pack their own fruit. Due to the combination of regulatory pressures on farmers, from 2005 to 2015 the number of farming units had declined by 30%. The average solvency of farms had declined to the worst levels in 30 years as debt growth outstripped asset growth.
Ms Visser reported that the regulatory pressures on farmers had in turn had a knock-on effect on farmworkers. In 2014, only 33% of workers on Western Cape fruit farms that were members of SIZA were employed on permanent contracts. The rest were all employed on fixed-term contracts. While permanent workers still received fairly substantial benefits, especially on-farm housing, temporary workers received very few benefits, if any at all. Also, the South African labour legislation did not adequately protect temporary farmworkers. Because of the grey area in the law, temporary workers often ended up not getting annual leave and sick leave. Recent changes to the Labour Relations Act (LRA) that prevents the rolling over of fixed-term contracts exclude workers employed for seasonal work, with the result that fixed-term contracts continue to be abused in the agricultural sector.
When they did the research in 2014, they had found that the vast majority of workers they interviewed earned either the minimum wage or 17% more than the minimum wage. However, the Bureau for Food and Agricultural Policy (BFAP) had argued that even the new minimum wage set in March 2013 was insufficient to feed a family of four. Despite low wages, the ready availability of temporary work during the season was a magnet for migrants from areas of low-employment, such as the Eastern Cape and Lesotho.
Regulatory pressures, especially the ESTA, were discouraging farmers from housing workers on farms. The combination of fixed-term jobs, the migration to labour-intensive farming areas and farmers’ reluctance to employ workers on-farm had led to exploding rural townships in certain parts of the country. These municipalities were not coping -- their housing and infrastructure budgets were far too small for all the people they had to help, and raw effluent was running into rivers. The situation was also leading to social conflict as they had seen time again in De Doorns and, recently, also in Robertson.
Ms Visser reported that in the ILO study, they had found fairly good compliance with labour legislation. They had not found any evidence of slavery, nor of workers getting paid in alcohol. On most sites, workers got annual or pro-rata leave, received sick leave, did not work excessive hours, received payslips and were paid overtime. However, the conditions for temporary or seasonal workers were inferior. They were less likely to be paid overtime, sick leave and annual leave than permanent workers. They also found higher rates of non-adherence with labour law in the Eston, Nkomazi and Levubu areas.
Though the sample had been small, and the study aimed to provide a snapshot, this was not a definitive overview of the agricultural sector. According to their snapshot, it also seemed that private social standards, such as WIETA and SIZA, but also Global Good Agricultural Practices (GAP), had a positive impact on working conditions on farms. Where farms were monitored by private standard setters, conditions were generally better than on farms that were not so monitored. This finding was confirmed during their most recent study, Shifting South.
She emphasised it was mostly northern supermarkets, specifically those in the UK, European Union (EU) and Scandinavian countries, that required the producer to adhere to private social standards. What the Shifting South project now found was that producers were beginning to move away from northern markets, not because of private social standards, but due to other factors. For instance, apple farmers had to find new markets, as they could no longer compete with European farmers that were able to store their fruit all year round. The consequence was that they had gone off in search of new markets. For the South African apple industry, Africa had now become its biggest single market. Yet, with a few exceptions, most buyers in Africa and South Africa did not require any compliance with social standards. The shift in end markets had been hastened by Covid, which had caused bottlenecks in the global supply chain. The war in Ukraine would further impact these shifts because SA could now not export fruit to Russia, and high petrol prices would push up shipping prices. The question was, if South African fruit farmers were no longer forced by northern retailers to implement social standards on their farms, who would monitor them?
In her conclusion, she stated that even though the Department of Employment and Labour was supposed to enforce labour and health and safety regulations on all farms, it remained seriously under-staffed, stretching its ability to enforce legislation. When interviewed in 2014, state officials responsible for monitoring adherence to the ESTA roundly acknowledged that their ability to monitor producers was extremely limited, again due to manpower shortages. The bottom line was therefore that as markets shifted south, the state could now no longer bank on international supermarkets to enforce labour, tenure and health and safety regulations on fruit and wine farms. It had to engage local supermarkets to start monitoring social conditions in their supply chains. The effect thereof would also be that private monitoring of labour conditions on farms would be extended to all farms, instead of just export-orientated farms.
University of Nairobi on vegetable supply chain regulation
Dr Maggie Opondo, Researcher and Senior Lecturer: Institute for Climate Change and Adaptation, University of Nairobi, took Members through legislation recently introduced by the Kenyan government to regulate the fresh vegetable supply chain, which impacted Kenyan workers and small farmers.
She said Kenya was a global leader in horticultural exports, but most of the produce came from smallholders. Almost 60% of the vegetables that were exported came from small producers. KS 1758 was the code of practice for the horticulture industry. It had been legislated by the Kenyan government. In 2013, there had been a maximum pesticide residue crisis, where the EU had restricted Kenyan products from entering EU ports because maximum pesticide residue levels were exceeding the EU limits at the EU ports of entry. This was because of insufficient documentation and inspection of horticultural products at the ports of exit in Kenya. Poor products were entering through the export channels. This was a scare for government because it relied heavily on horticultural exports.
In 2016, there was a health scare. It was found in large Kenyan supermarkets and open markets that the fresh fruit and vegetables were contaminated. The maximum pesticide residue levels were above the legal limit. There was a growing incidence of cancer linked to this contaminated food. When shifts moved towards the south, there was a governance void. Traditionally, Kenyan fresh vegetables were mainly exported to the European Union. As the trade began to shift south, public standards had to come in because there was that lacuna between the global value chains and the domestic and regional value chains. There was a time when even South Africa banned avocadoes from Kenya because of the pests that were found in them.
Because of this, the Kenyan government had decided to introduce KS 1758 as the code of practice for the horticultural industry. This was an attempt to avert another maximum residue level (MRL) crisis and save its reputation because, over the years, Kenya had developed this global leader status and did not want to lose it, and at the same time to tame the rising incidence of cancer. The creation of KS 1758 was led by the Kenyan government in collaboration with the exporters' association and EU through the UNV, which had provided the funds in 2016. Civil society had played a critical role in stimulating the government’s response. Consequently, the KS 1758 was legislated in 2019. because Kenya did not want to go the way of private voluntary standards.
With this approach, the Kenyan government adopted the value-chain approach, right from plant breeders and growers to cargo handlers. KS 1758 had got provisions for hygiene and safety requirements for production, handling and marketing of fresh fruit and vegetables. This was implemented right up from the producer to the supermarket, where the products end. This code had provisions for environmental sustainability and social accountability for both domestic, regional and global fresh fruit and vegetable value chains. Currently, it was only food and product safety provisions that were implemented. If KS 1758 could be implemented to the letter, it could enhance decent work for smallholders and their wage workers, especially those not in the small producer organisations (SPOs), and enforce accountability and produce high-quality standards.
The Kenyan government had encouraged producers to organise themselves into SPOs because most of Kenya’s exports were produced by smallholders. As a result, gender dynamics had changed rapidly. The Kenyan constitution required that two-thirds of any organisation must not be more than one gender. Women in leadership positions had come to the fore. These SPOs had got better bargaining power and were able to bargain for better prices because they bought directly from the farmers. There had been donor funding as well from the World Bank. The funding went to large groups of producers like the Samawakama Organic Avocado Cooperatives. The contracts were binding, unlike previously. Individual farmers and SPOs had written contracts with buyers and fixed prices, despite market fluctuations. They were able to share losses and had access to production inputs. If KS 1758 could be implemented to the letter, there would be social accountability and traceability.
Deliberations with Stats SA, AFRA, and Phuhlisani
Ms C Mkhonto (EFF) asked Stats SA if the multi-dimensions of poverty included food security. She remarked that according to research the Departments of Agriculture and Labour had failed to enforce regulations on labour tenants. Farmworkers were paying for low-quality housing, and she asked how common this practice was in the farming communities. She also asked why it was difficult for the government to build homes on privately owned land, and enquired if this would affect agri-villages.
Ms Shabalala responded that her presentation covered only a few indicators for a wide range of indicators like education, food security, etc. More information could be made available to the Committee. The presentation had focused on desegregation in terms of geographical location. She said the poverty index did not talk about food security. The focus was on the trends. More information would be sent to the Committee.
Ms Oettle said a judgment had been made in the high court around the provision of services to farmworkers by municipalities. Landowners had been against this. The courts had argued this was against human rights. Municipalities had now begun to provide those services.
Dr De Sagte said there was a potential to explore well-located agri-villages, but they could be poverty traps. Rural areas were unlikely to get a good service compared to the urban ones. There had been attempts to establish them in the Western Cape, but with no success. He further indicated that municipalities were now able to provide services to privately-owned land. The courts had clarified it was possible to build a house on privately-owned land, but there were regulations on what the state could do or not on those pieces of land. Farmworkers did not own the houses, but they occupied them until the end of their contracts.
Ms H Denner (FF+) asked Stats SA how the 2020 estimates had been made, and how accurate they were. From AFRA, she wanted to know how many outstanding labour tenants’ claims there, and she asked Phuhlisa how many ESTA cases were currently in the courts.
Ms Shabalala said the presentation had used various sources of data. The 2020 household survey was desegregated by other variables. It was representative. She was confident that 95% of the information produced was reliable.
Ms Oettle said that of the 22 000 claims by labour tenants, 9 000 cases remain unresolved. That meant it was 9 000 families that would be impacted when the claims were finalised.
Dr De Sagte stated he was not aware of ESTA cases in the courts, but could provide the Committee with judgments.
Mr S Mdabe (ANC) wanted to understand if the AFRA report was inconclusive, because farm dwellers had not been informed about the public hearings. He also wanted to find out how conclusive the report was, given the challenges municipalities had to access privately owned land, and that non-governmental organisations (NGOs) participating in the farming sector appeared not to have a different view, to ensure they were the friends of the court on behalf of the farming community.
Ms Oettle stated there was a lack of will from government and civil society to have mediators play a role between farm owners and workers. There was a need to champion the cause of the vulnerable groups. They were working with the office of the Special Master to resolve complex court orders. It was an inclusive process. Labour tenants were now beginning to be landowners. The implementation process was moving forward and with the right support, they would become farmers.
Mr N Capa (ANC) asked Stats SA if skilled white workers working on farms could be classified as farmworkers. He enquired from AFRA if a master and servant relationship still existed on farms and what could be done if they affected conditions of farmworkers, and wanted to understand how the unionisation of workers affected their relationship with farm owners.
Ms Shabalala said the numbers included all those found on the farms, including professionals, irrespective of their colour.
Ms Oettle said power relations had not changed on many farms, but on some farms, they had changed. Civil society had to find ways of bringing parties with opposing views to reach common ground, to change the plight of farmworkers and dwellers.
Dr De Sagte stated unionisation would depend on the sub-sector and size of the farm. There was a possibility of unionisation if the sector was big. He said unequal relations of power needed to be challenged. There was a need to make farm labour competitive so that people could find it attractive.
Mr S Matiase (EFF) asked Stats SA how many farm dwellers SA had. It was important to have real figures of how many farm dwellers the country had between 1984 and 1994, and how patterns of settlements on farms had changed between 1994 and the present. He commented that the Phuhlisani presentation had not stated how to address security of tenure. Policy fragmentation existed when it came to security of tenure, especially for farmworkers. The government had many pieces of legislation around the issue of land.
Ms Shabalala reported that they had conducted a census on commercial agriculture around 2007. The total number had been 427 farms, and workers were below 800 000. They could not extract information going backwards, but they could look at how far to go back by using the methodologies used in the past.
Dr De Sagte said they had to focus on particular constituencies and look at other needs, such as education, training, health, services, etc. There was no anchor in the state to look at the programmes that were being developed individually. District municipalities should have one plan.
The co-Chairperson commented that the presentations had given Members a broader picture of the challenges embedded in the farming communities. The presentation from Stats Sa had not come closer to stating the response of the farming community to matters of the minimum wage and other legislation pieces. The presentation would make it easier for Members when they were doing oversight so that they could provide appropriate responses.
The Chairperson enquired from Stats SA if there was any difference between farmworkers and owners regarding access to services. What were the impediments to section 4 of ESTA? Did they think there was a great migration to cities from the farms? He wanted to know what the views of AFRA were concerning the removal of farm dwellers to shanty towns and RDP houses, especially on the wine estates. He asked if AFRA thought agri-villages were the solutions for the future.
Ms Shabalala said information on tenure status could be extracted and forwarded to the Committee. Access to services combined both farm owners and workers/dwellers.
Ms Oettle said there was a difference between farm workers/dwellers and labour tenants. In the Western Cape, there were far workers and labour tenants. There are also those who occupied or lived on the farms but had no employment opportunities. These were vulnerable dwellers. She said agri-villages were essential.
Ms A Steyn (DA) wanted to know if the presenters had addressed the matter of the education of the children of farmworkers because many farm workers had moved to towns for the sake of their children’s education.
Ms Shabalala indicated they had a report that referred to education, including a wide range of education information, but not on desegregated farm areas.
Ms Oettle said the abolition of farm schools had had a negative effect on many farming communities. This matter needed a rethink.
Dr De Sagte added that the abolition of farm schools was a programme that had contributed to urban migration.
Deliberations with Ms Visser and Dr Opondo (UCT & UoN)
Ms Mkhonto remarked that the presentations had been insightful, and the information would assist in oversight visits and recommendations to the two Departments. She had expected Ms Visser to talk about the extent of illegal migrant workers, especially at the Levubu border post. Farmers were using illegal immigrants. She was happy that the Human Rights Commission had talked about labour brokers. She then asked to what extent migrant farmworkers affected the value chain. How could one ensure that smallholders became part of the value chain?
Ms Visser said she had tried to get information on the use of migrant labour in other areas. It was a problem for certain areas of the Western Cape, making it difficult for some farm owners to get contracts for migrant labour. However, this would eventually happen underground, because locals hired out their bank cards and identity documents (IDs) for a fee. These exploitation practices would continue to increase because some farmers could not tell the difference between a local and a foreigner. She said they were scratching the surface in terms of labour exploitation.
She also indicated it was difficult to get information on labour brokering, tracking down labour brokers, because they kept on changing their contact details. Farmers did not want to work with them anymore because the quality of the workers they brought was very low, and ethical trading organisations had put strict regulations on making use of labour brokers. There was evidence that farm owners preferred Zimbabweans to others because of their education and quality of work. She said Robertson had been a red flag when they were doing their research. Small black farmers faced the same problems faced by white farmers. Safety and product standards were falling. That was why producers were advised to form cooperatives. In Illovo, for example, support was given to small farmers for product and labour standards
Ms Steyn commented that the role of markets and supermarkets was important, especially if one wanted to move forward in assisting farmers. She asked if any studies had been done on farming conditions. How many inspectors were doing farm visits? She asked if it was possible for the housing information to be corroborated.
Ms Visser stated that their research on farm housing had focused on a small sample.
The Co-chairperson commented that Ms Visser had talked about deregulation and its ability to maximise opportunities for local farmers. Could she contrast her presentation with that of Dr Opondo and vice versa?
Ms Visser said she could speak only about the South African situation rather than about regulations in Kenya. There was scaling back on research, extension services, and lack of access to markets. Supermarkets should push due diligence and ensure their supplies were compliant with legislation.
Dr Opondo elaborated on smallholder farmers in SA and Kenya that could be part of the value chain. In Kenya, just like in SA, it had been a journey of a similar history. The land tenure system had been addressed, but they still experienced problems. When they were doing research, they had compared South Africa and Kenya in the horticultural sector regarding the regulatory framework. The private social standards in SA were limited to the domestic value chains. However, there was a spill-over from the global value chains to the domestic value chains. Although in the Kenyan horticultural sector, there were no private social standards in the domestic value chains, just like in SA, there was a spill-over from the global value chains into the domestic value chains. The Kenyan horticultural industry was one of the most codified industries, with codified standards. Around 40 standards were being applied in the sector, and given the fact that the sector was women-dominated, was easily traceable and easy to put pressure on. There was a time when the export of flowers and horticultural products had been stopped. That had brought the supermarkets through the ethical trading platform together so that the situation did not get out of hand. Kenya had had a lot of private social standards.
When it came to public standards in SA, the national labour regulations were strong but poorly enforced, and there were weak unions in the horticultural sector. There was weak protection for temporary workers in SA. When one came to Kenya, the national labour regulations were strong, the trade unions were strong, and in conjunction with private social standards, they were able to enforce them. There was weak protection for small labour in Kenya. In SA, there were voluntary roundtables where producers were beginning to develop and speak with one voice, whereas in Kenya there was the KS1758 that had been regulated and being rolled out.
Ms Visser said the value-chain roundtables were applaudable. Members of the partners sometimes did not turn up for meetings, and that was a problem. Retailers should also be invited to the forums because they were part of the problem and the solutions.
The acting Chairperson said appropriate interventions should be made to stabilise the sector. A balancing act in the sector would be good.
Dr De Sagte stated that a reason why there had been a failure in implementing the ESTA was because of a problem with the wording. The provisions in the Act had not been taken up. Minister Thoko Didiza’s view during her first term as Minister of Agriculture had been that ESTA was not implementable, but he does not know if she had now changed her view.
Adoption of draft joint oversight programme
The Committee considered and adopted the draft joint oversight programme.
The meeting was adjourned.
- GDI: Working Paper Series
- Dr. Maggie Opondo Presentation
- AFRA: Laurel Oettle Presentation
- Phuhlisani NPC Farm Worker Presentation
- UCT: Margareet Visser Presentation
- SAHRC Land Hearing Report: Rural Land Use
- SAHRC Farm Report: Rural Safety
- ILO Commissioned Report
- HRW: SA Farm Brochure
- Farming Inquiry Report
- Commissioned Report: Tenure Security of Farm Workers & Dwellers
- Commissioned Report: Tenure Security of Labour Tenants
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