Introducing the Pathway Project: working together to map new paths across the agricultural landscape

Formally known as the Farmdweller Rights Settlement Project, AFRA’s innovative Pathways Project – affectionately named after being descibed as mapping “pathways out of poverty” – is an initiative funded by the European Union that facilitates consensus between landowners, farm dwellers and government around how to settle the rights of ESTA occupiers and labour tenants to secure tenure and access to services.

The South African Government and the Courts have made important progress in defining the respective legal rights of owners and others living on their farms. However, the absence of an institutionalized and neutral system to administer ESTA and labour tenant rights on commercial farms means that their adjudication occurs on a case-by-case basis, with the Courts often the only recourse when disputes arise. This forces landowners and people living on their farms into time-consuming and costly negotiations to resolve the myriad of disputes that can arise. The global pressures on the profitability of farms and the struggles of the rural poor to secure decent livelihoods compound these conflicts, making it urgent to negotiate new ways forward.

The project focuses on the Richmond and Umshwathi Local Municipalities and aims, together with government, land owners, ESTA occupiers and labour tenants, to develop a framework containing new models for how the rights of ESTA occupiers and labour tenants to secure tenure and access to services could be settled.

The project draws on the Food and Agriculture Organisation (FAO) of the United Nation’s Voluntary Guidelines on the Responsible Governance of Tenure (VGGTs), which call on countries around the globe to:

• Recognise and respect all legitimate tenure right holders and their rights;
• Take reasonable measures to identify, record and respect legitimate tenure right holders and their rights, whether formally recorded or not; and
• Meet the duties associated with tenure rights.

The section in the VGGTs on the Administration of Tenure includes: Records of Tenure Rights; Valuation; Taxation; Regulated Spatial Planning, and Resolution of Disputes over Tenure Rights. These provide a good starting point for a discussion of what an appropriate land administration system for complex tenure arrangements on South Africa’s farms should consider.

South Africa’s countryside continues to manifest the spatial inequality of our history, and the poverty that accompanies this inequality. The particular way the country’s property system and economy have developed mean that this spatial inequality is a persistent challenge in the present.  One aspect of this challenge is that no matter how willing landowners are to allow ESTA occupiers and labour tenants living on their farms to receive the services they are Constitutionally entitled to, government finds itself constrained in spending public money to develop land that is privately owned.

While these fiscal constraints are understandable, farm dwellers find themselves in a legal space of competing Constitutional imperatives: the rights of property owners on the one hand, and the right to services on the other.  It is this “no man’s land” that has given rise to farm dwellers calling themselves the “forgotten citizens”.  Addressing these structural misfits around such contentious and sensitive issues such as property rights of owners and rights of ESTA occupiers and labour tenants to basic services requires agreement between stakeholders at many levels.

A coherent and fair approach to managing the tenure rights of this persistent farm population is important to avoid deepening rural poverty and inequality. In this respect, it is important to state that the Pathways Project is not about the expropriation of land rights, but about the administrative systems to recognize already existing legal rights. These rights – defined and elaborated in the Extension of Security of Tenure Act (1997) and the Land Reform (Labour Tenants) Act (1996) – already circumscribe ownership rights over particular farmland spaces. What is missing is a land rights administration framework that provides a consistent and fair set of rules for determining what the nature and extent of these rights in relation to the rights of ownership.

AFRA therefore suggests that a first class land administration system that includes farms (along with communal areas, peri-urban shack settlements and group-owned redistributed farms) would be to the benefit of all South African’s and would allow individuals to securely enter into the tenure arrangements that best meet their needs. The Pathways Project believes that a first class land administration system would be one that is simple, equitable and transparent.

An effective land administration system is one that creates certainty around all land rights. Such a system should be uncomplicated and easily understood, fair to all parties, and aim at creating social stability by ensuring that the rules governing it are open and transparent.

AFRA’s primary task in the Pathways Project is to facilitate dialogue within and between each working space in order to develop consensus on how to develop an appropriate system for administering tenure rights on farms.