Land News

Laws exist to protect farm tenants, but on paper only

As published in the Business Day, 4 August 2017

Farm dwellers remain among the most vulnerable people in society, write Lauren Royston and Nokuthula Mthimunye

Zithulele Mabhida Mkhize was born and grew up on a farm in the Mkhambathini area of KwaZulu-Natal. He still lives there, with two sisters, a brother and his mother.

Their tenure is insecure and their livelihoods are precarious. The law offers them protection, but they can’t access their rights without going to court.

When Mabhida was at primary school, he lost his father, who was the breadwinner of the family. As the eldest son, he left school and did piece jobs to support his mother and siblings. Over the years, his mother got sick and could no longer work on the farm. As a result, the landowner tried to evict them. When he failed, he ordered the destruction of their mud house and they were forcibly relocated to a house on the farm from where the owner again tried to evict them.

The owner then employed a security company to force them into two rooms and brought other farm workers into the house and they were compelled to share the space. Mabhida has taken the matter to court but the cogs of the legal process turn slowly.

Farm dwellers remain among the most vulnerable people in society, with many living in conditions of insecure tenure without access to essential services and adequate housing. The challenges they experience include illegal evictions, denial of burial rights, desecration of graves, unfair labour practices, bans on renovating houses and access to basic services.

These violations occur despite the existence of a progressive legal framework protecting the rights of farm dwellers and labour tenants.

THE STATE HAS BEEN UNABLE OR UNWILLING TO EFFECTIVELY IMPLEMENT THE LEGAL FRAMEWORK.

After 1994, families such as Mabhida’s had reason to hope when new laws, deriving from the Constitution, promised to secure their rights to the land on which they had grown up.

The Land Reform (Labour Tenants) Act of 1996 guarantees secure tenure to people deprived of it in terms of racially discriminatory laws.

The act tackled the plight of labour tenants who can claim ownership of the land they and their fathers had lived on and used. The Extension of Security of Tenure Act of 1997 protects families such as Mabhida’s against unlawful eviction from farms and provides for farm dwellers to obtain more substantive tenure rights such as the right to live on and use the land.

The Association for Rural Advancement’s (Afra’s) new research report, Pathways out of Poverty: Improving Farm Dweller’s Tenure Security and Access to Housing and Services, is a guide to legislation, policies and case law. It will assist officials, non-governmental organisations and public interest law practitioners in navigating the highly complex legal and policy framework regulating farm dwellers’ rights to tenure security and access to adequate housing and basic service.

The publication analyses the legal and policy framework, takes stock of the case law of the Land Claims Court, the Supreme Court of Appeal and the Constitutional Court and unpacks the most important legal principles that have been developed by these courts.

It finds that, although the government and the courts have made progress in defining the respective legal rights of owners and people living on their farms, the absence of an institutionalised and neutral system to administer the security of tenure act and labour tenant rights on farms means that their adjudication occurs on a case-by-case basis.

The laws and regulations governing farm dwellers’ rights to tenure security and access to housing and basic services establish a framework that can create a sound foundation for realising farm dwellers’ constitutional rights. However, the state has been unable or unwilling to effectively implement the legal framework it has put in place.

The courts are often the only recourse when disputes arise.

In 2017, the Constitutional Court shed more light on security of tenure rights in two judgments. In May, in Daniels v Scribante, there was clarity on the meaning and content of the right under the act to reside on and use farmland by declaring that an occupier has the right to make improvements to the dwelling.

Justice Mbuyiseli Madlanga explained that the right to reside on and use farmland would be “empty” if it were no more than a roof over one’s head. Rather, the right must be conducive to human dignity and other fundamental rights.

The Daniels judgment went further by stating that farm owners may be required to take positive steps to realise the rights of occupiers living on farms. This could include reimbursing an occupier for improvements made to the dwelling if they leave the farm.

In Baron v Claytile, the Constitutional Court upheld the obligation of a municipality to provide alternative accommodation in the case of an eviction that would result in homelessness. However, the accommodation offered by, in this instance, the City of Cape Town, is a peripherally located tin shack camp, Wolwerivier, where the occupiers expressly did not want to move.

The judgment has been called a “missed opportunity” by failing to consider, as the act requires, “reasonable alternative accommodation”, “the reasonable needs and requirements of all the occupiers” and that the accommodation should be “overall not less favourable”.

Many farm dwellers do not want to leave the farms that are homes. For them, the act’s procedural protections offer little solace. Their interests lie in the act’s long-term tenure security objective and the content of the substantive rights it is meant to provide.

Despite limitations like this, litigation is an important means to realise farm dwellers’ constitutional rights. However, collaboration between farm dwellers, land owners and the spheres of government is essential to find ways to unblock the obstacles and find mutually acceptable options to secure rights and access to services on a systematic basis.

But collaboration initiatives confront the long history of dispossession, unfair labour practices and skewed power relations on farms. Often it is farm dwellers and municipalities at the table, while willing farm owners are few and far between. And many farm dwellers are growing tired of compromise.

Afra’s recent engagements with landowners, agricultural unions and government departments show that potential for change exists.

A greater willingness to communicate about land and services issues appears to be evident on some farms.

It is certainly apparent at several municipalities.

  • Royston and Nokuthula Mthimunye are researcher and communications advocate at the Association for Rural Advancement.
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New Publications

LAND RIGHTS ADJUDICATION: Developing Principles and Processes for ESTA and Labour Tenant Rights’ Holders

The report provides a conceptual framework for understanding the application of ‘adjudication’ to land rights verification as part of a general land administration function that includes off register rights; and outlines the motivation for developing such a system in South Africa, with some provisional ideas about systematizing and institutionalising land rights adjudication to include off-register rights.

The immediate context in which these ideas are being developed is AFRA’s Pathways Project which aims to settle the rights of farm dwellers and labour tenants whose rights are defined by the Extension of Security of Tenure Act, No 62 of 1997 (ESTA) and the Land Reform (Labour Tenants) Act, No 3 of 1996 (LTA) with the view to secure tenure and access to services in order to facilitate Pathways Out Of Poverty.

The project aims to identify and explore a range of legal and official mechanisms to achieve these goals Tenure security is regarded as key to realizing AFRAs longer term development goals, given the persistence of endemic uncertainty of Tenure rights. This report identifies ‘land rights adjudication’ as a key potential means by which the land rights of the poor, including those with extremely vulnerable Tenure on farms, can be shifted towards greater acknowledgment and certainly.

Download the Land Rights Adjudication Report here

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New Publications

Improving Farm Dwellers’ Tenure Security and Access to Housing and Services

The PATHWAYS OUT OF POVERTY: Improving Farm Dwellers’ Tenure Security and Access to Housing and Services is a guide to legislation, policies and case law and will assist officials, non-governmental organisations and public interest law practitioners in navigating the highly complex legal and policy framework regulating farm dwellers’ rights to tenure security and access to adequate housing and basic service.

The publication produced with the assistance of the European Union, analyses the framework governing farm dwellers’ tenure security and access to housing and basic services to try to understand why farm dwellers remain so vulnerable. It also takes stock of the case law of the South African Land Claims Court, the Supreme Court of Appeal and the Constitutional Court and unpacks the most important legal principles that have been developed by these courts in relation to farm dwellers’ tenure security and access to housing and services.

AFRA argues that the laws and regulations governing farm dwellers’ rights to tenure security and access to housing and basic services establishes a framework that has the potential to create a sound foundation for progressively realising farm dwellers’ constitutional rights. However, the state has been unable or unwilling to effectively implement the legal framework it has put in place. AFRA has initiated the Pathways Project in an effort to create a platform for negotiation between farm dwellers, land owners and different spheres of government to find ways of unblocking the obstacles to implementation of systematic settlement of land and service rights.

Download the guide to Improving Farm Dwellers’ Tenure Security and Access to Housing and Services here.

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