Historic judgement awaits

Labour tenants and AFRA, represented by the Legal Resources Centre (LRC), finally had their day in court as Judge Thomas Ncube heard arguments for the appointment of a Special Master on the 10th and 11th October 2016. The highly anticipated landmark judgement could set legal precedent in South Africa, and is expected to be announced soon.

A small group of dedicated labour tenants travelled through the night to Randburg, Johannesburg, to arrive at the Land Claims Court on the 10th October. They listened to the proceedings over two days with an intensity and exhaustion that accentuated the long wait they have endured for a resolution to the land claims they and many others made under the Land Reform (Labour Tenants) Act.

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Both AFRA staff and labour tenants were relieved to finally have their arguments heard in court after a long wait convoluted by delays, missed deadlines and squandered opportunities by the Department of Rural Development and Land Reform (the Department).

A long wait

While the plight of labour tenants began long before the Labour Tenants (Land Reform) Act of 1996, the signing of the Act by then President Nelson Mandela on March 22 formally acknowledged Labour Tenants as a class of people with a very specific set of legal rights.

In terms of the Act, people could be classified as labour tenants if they had in the past worked on a farm, without financial compensation, in exchange for rights to live on the farm and usually being allowed to work that small portion of that farm themselves through grazing and/or cropping. This arrangement allowed white farmers access to free labour where no wages were paid.

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As with many laws that were signed after 1994, the Labour Tenants Act looked to redress past inequalities. It aimed to do this by transferring ownerships of the portion of land that labour tenants who made claims had lived on, or alternative compensation by mutual agreement. By the cut-off date of the 31st of March 2001, around twenty two thousand labour tenants had lodged claims with the Department.

However, twelve years after the cut-off date AFRA came to the firm conclusion that little or no action was being taken by the Department to implement the Labour Tenants Act.

A Class Action

A particularly large group of labour tenants who live in the back yard of the richest schools in South Africa, Hilton College, had been working with AFRA around the settlement of their claim. AFRA took up their case in 2011, when it was realised that their plight was no different from that of thousands of other labour tenant applicants. It was thus decided to bring a class action on behalf of all outstanding claimants, and in July 2013 AFRA – with the assistance of the LRC – filed a class action lawsuit.

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Judge Thomas Ncube has a hard decision to make in the Labour Tenants Class Action. Photo: Tom Draper

From 2013 onwards, the Department repeatedly failed to comply with court ordered deadlines, provide adequate progress reports or provide statistics pertaining to the current status of labour tenant claims. The ongoing and persistent failure to process or refer to labour tenant applications was not only breaching the court orders but directly contrary to the South African Constitution.

A Special Master

The Department’s continuous systemic failure spurred AFRA to seek further redress, believing that a Special Master would be the only mechanism powerful enough to oversee the implementation of the Labour Tenants Act. A Special Master is an independent person appointed by, and reporting to, the Court. Their role is to assist in the implementation of a complex order, and they are not an advocate for the claimants or for Government, but an agent of the court. They are in essence “A problem solver, a solution finder,” arguably providing the surest route to the relief sought: the full implementation of the Labour Tenants Act and secure tenure for those whose claims are upheld in accordance with the criteria laid down by the legislation.

During the course of 2015 and 2016, AFRA mobilised labour tenants from across the country to attend all hearings related to case held at the Land Claims Court. Despite a variety of logistical challenges, the #LabourTenants movement became widely publicised in print, radio and televised media as well as social media.

Finally, an answer

After much persistence, deliberation and adjustment to a constantly shifting case, we hope that history can be made in this difficult decision Judge Ncube will have to make. The appointment of a Special Master will not only set legal precedent in the country, but we believe that it will more importantly fast-track the process that will finally see closure for labour tenants that have been made to wait too long.

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.

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Farm Dwellers Bambe Wanda, Nonhle Mkhize, Jabulile Gwamanda and Nonhlanhla Gasa sit in one of the first focus groups for the Pathways Project. Photo: Tom Draper

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.

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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.

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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.

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Areas of work in the Pathways Project

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.

Mobilisation and Engagement: AFRA’s exciting new partnership with Oxfam South Africa

AFRA is delighted to be working with Oxfam South Africa as part of their Rural Transformation Programme. Oxfam South Africa mobilise the power of people to claim their rights and participate fully in shaping decisions, policies and processes that affect their lives and hold power to account, challenging systems which perpetuate poverty and inequality.

AFRA, in partnership with Oxfam South Africa, will assist women, youth and men residing or working on rural commercial farmland in six local municipalities in uMgungundlovu to mobilise around key issues impacting on their quality of life and access to sustainable livelihoods, engaging with and influencing policies and processes that impact on their land and development rights. This will build on the work started in our recent Regional Farm Dweller and Workers Platform to identify, support and mobilise community entry points, networks and alliances as champions of land and development issues.

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Photograph: Sithandiwe Yeni, Oxfam South Africa’s Programme Manager for Rural Transformation, at the AFRA Farm Dweller and Farm Worker Platform in September 2016.

This project is an integral part of AFRA’s Strategic Plan for 2017-19, and builds on similar work that AFRA has undertaken with communities over the past 37 years whilst also opening opportunities for us to explore new approaches. The project expands on and consolidates current work within all our other programmes, building on aspects of community empowerment and mobilisation already within our Farm Dweller Advocacy Project (funded by Bread for the World), our Action Research Project with Tshintsha Amakhaya, our Farm worker and Farm dweller Rights Project and our Youth Rights Project (both funded by the Foundation for Human Rights), and our Farm Dweller Rights Settlement Project – better known as the Pathways Project (funded by the European Union). We are grateful to the farm dwellers and workers who stepped forward at the Platform and asked for support to create this space to work with each other, and to Oxfam South Africa and our other partners for working with us to enable this vision to become a reality.

AFRA paves the way to work closely with land owners

Four years ago the Ntuli/Fowler relationship could not have been in a worse position, but today the Ntuli family has been peacefully relocated and built a house in KwaHaza.

When Mpekeleli Ntuli retired in 2010 he left David Fowler’s Petrus Stroom Farm to live with his new wife. However, his three grandchildren opted to stay on the farm as they were working for Fowler, their children attended the local school and the house Mpekeleli had moved to was too small to accommodate the expanding family.

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The Ntuli’s house on the Petrus Stroom Farm was not in a good shape. Photo: Nokuthula Mthimunye

Over time the relationship between the Ntuli family and Fowler deteriorated and after many attempts to resolve their differences, Mpekeleli Ntuli’s family were willing to try mediation. For a number of reasons, the Ntuli family wanted to vacate the farm.

Fowler approached AFRA for help to negotiate an agreement and through several mediated sessions, a common ground was reached.

“I am happy I approached AFRA for legal advice. Siya [Sithole, AFRA’s Land Rights Advocate] is such a pleasant person to work with, he knows the law and I trusted his intervention,’’ he said.

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The newly constructed house in KwaHaza. Nokuthula Mthimunye

The remaining Ntuli family members were able to relocate to KwaHaza after the house that agreed upon was built by Fowler in September, along with the installation of a rainwater tank. As a token of appreciation for Mpekeleli Ntuli’s long standing service, Fowler made a sizeable contribution towards a traditional ceremony that the family would hold upon moving home. Fowler also provided assistance in moving the furniture across to their newly built house.

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AFRA’s Land Rights Advocate, Siya Sithole, assists with the delivery of the Jojo tank. Photo: Nokuthula Mthimunye

The parties also agreed that the family graves would be accessible by the Ntuli’s and that they would be preserved from any desecration from farming activities.

Siya Sithole, AFRA’s Land Rights Advocate, was pleased with the outcome of the case. “This story is typical of the critical work that AFRA does on a daily basis, we are pleased to work with landowners who value, realise and protect the rights of occupiers,” he said.

KZN farm dwellers, workers highlight grievances

By Lloyd Phillips, as published in Farmer’s Weekly

Representatives of farm dwellers from six local municipalities in the KwaZulu-Natal Midlands recently gathered to discuss problems reportedly being experienced on a number of farms in the area.  The Association for Rural Advancement’s (AFRA) inaugural Farmworker & Farm dweller Platform, held over two days in Pietermaritzburg recently, provided the complainants with an opportunity to air and submit their grievances to government departments.

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The representatives came from Mshwathi, Richmond, Mkhambathini, Mngeni, Mooi-Mpofana and Msunduzi.

Allegations included farmworkers receiving low wages, having to work in dangerous conditions, not being allowed to take annual or maternity leave, not receiving severance pay, not being paid due benefits, and having to work unfair hours.

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Farm dwellers alleged unfair evictions, not receiving basic services such as running water and electricity, having their grazing and livestock impounded, having their electricity disconnected, being prohibited from building brick houses, not being allowed to bury family members on farms, and being forced to sign contracts that they did not understand.

The Department of Rural Development and Land Reform (DRDLR) did not escape criticism. The representatives alleged that it was taking too long to process land claims.

“Successful land claimants are also not getting title deeds to their land from government. We’re now demanding a three-month time limit for government to provide us with updates and information on land claims that have been lodged,” said Shakes Shange, a representative of farm dwellers and workers from Richmond.

He also accused the DRDLR and other government departments such as the Department of Labour (DoL) of being biased in favour of farmers and other rural landowners.

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“We’re frustrated that government is not doing its work effectively,” he said.

Sifiso Mazibuko, representing farm dwellers and workers in Mkhambathini, urged the DRDLR and DoL to hold workshops where farmers, other rural landowners and farm dwellers and workers could receive training on land and labour laws.

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“We’d like to see common ground being achieved between farm owners, farm dwellers and farmworkers so that we can better understand each other’s needs. There must be collaboration between all stakeholders. We’re not targeting farm owners because they’re white. We’re targeting the illegal, unfair and wrong things that they do against farmworkers and farm dwellers,” he said. – Lloyd Phillips

Departments promise support for farm dwellers

After formally accepting a range of grievances from farmworkers and farm dwellers from six municipalities in the KwaZulu-Natal Midlands regarding their working and living conditions, various government departments committed themselves to addressing the complaints.

Government departments attending the Association for Rural Advancement’s Farmworker & Dweller Regional Platform, held recently in Pietermaritzburg, were the Department of Labour (DoL), the Department of Rural Development and Land Reform Human Rights Commission (SAHRC).

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Nkosikhona Majola the DoL said the department would be holding a meeting to discuss the issues raised and seek out solutions.

“It’s essential that farmworkers’ working conditions are according to the labour laws” he said.

Majola mentioned cases where employers were not reporting on-duty injuries sustained by their employees to the DoL. The DoL was therefore unable to pay the injured farmworkers the compensation due to them.

“Instead, there are farm owners who have private insurance that pay [the farm owner] out when one of their farmworkers is injured,” he said.

He encouraged farmworkers to establish committees to record labour law violations and report them t6 the DoL.

Nomphilo Mhlongo of the DRDLR acknowledged complaints that not all of her department’s offices and all of her department’s offices and officials were effective in dealing with land and labour tenant claims.

She said that DRDLR was currently working on improving efficiencies across all of its structures.

“We’re pleased to have received the lists of complaints and demands from this platform. We’ll work through them methodically,” she said.

Thandeka Makhonyane of the SAHRC urged farmworker and farm dwellers with complaints of human rights abuses to contact the commission for assistance. She said that the SAHRC’s services were offered free of charge to the public.

[Summary of Arguments] The Rights of Labour Tenants Tested in the Land Claims Court

A Long Wait – Not Yet Over

The Association for Rural Advancement, on behalf of 19 000 labour tenants, has finally been able to place its arguments for the appointment of a Special Master to oversee the processing of outstanding labour tenant application before Judge Ncube at the Land Claims Court.

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The court proceedings took place on the 10 & 11th October 2016, as a small group of twenty labour tenants gravely watched and listened to the proceedings, the outcome of which will directly affect their future and those of the many thousands of labour tenants still left in limbo. The case for AFRA and the labour tenant claimants was presented by Advocate Alan Dodson and the Legal Resources Centre’s team, who have worked on the case for more than three years. Advocates Notshe and Jansen represented the Minister and the Director General of the Department of Rural Development and Land Reform respectively.

The AFRA team and labour tenants present were visibly relieved that they have had their day in court, after many years of delays, missed deadlines and squandered opportunities. At the end of the two proceedings an adjournment was announced, with the outcome expected to be handed down by Judge Ncube within approximately five weeks. A historic verdict will be rendered at that time, finding either for the victims of decades of neglect of their legal rights, the labour tenants, or in favour of a bureaucracy and Minister who claim that, while they may have been the cause of these violations, they are still best placed to fix them.

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Advocate Dodson and the team clearly and logically set out the case for labour tenants.  In short this restated the previous lengthy submission, Court papers and Court orders, showing that the Department, to the detriment of claimants, had abandoned the implementation of the Labour Tenants Act. It was further argued that the Court ordered deadlines and undertakings by the Department were not met, pointing to a chronic and systemic failure on the part of the Department. This mountain of evidence required Court intervention for supervision of the implementation of the Act, in such a manner as to expedite the provisions of the law.

The applicants explained that a Special Master is an independent person who is appointed by, and reports to, the court. Her duty is to assist the court to implement a complex order. The Special Master is not an advocate for the claimants or for the government, but an agent of the court. It was shown that a Special Master “would be a problem solver, a solution finder” to the seemingly intractable failures of the Department, thus providing the surest route to the relief sought by labour tenants: full implementation of the Act and secure tenure for those whose claims are upheld in accordance with the criteria laid down by the legislation.

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Judge Thomas Ncube During the Labour Tenants Class Action

The applicants also further argued their reasons for asking the Court to find the Minister in contempt of court, a matter related to his unilateral disregard of the spirit and letter of a Court Order framing a negotiation process between the parties earlier in 2016.

“Idealistic Cry-Babies” with a Hidden Agenda

The Director General’s legal counsel responded to these arguments with a number of assertions which seem to indicate a reversal of the previous positions taken on the matter. The Department, its was argued, was best placed to resolve the issue of Labour Tenants, and thus the appointment of the Special Master was not warranted. Advocate Jansen appeared willing to have a renewal of the previous Court Order (2015) which required regular reports to AFRA and the Court, saying that given another year, great progress would have been made. He further stated that the all the obstacles and challenges facing Labour Tenants were well understood by the Director General and that his expertise far exceeded that of any external party, again stating that a Court appointed Special Master would lack this expertise. For the Department, it was clear that AFRA and the Labour Tenant claimants, have “idealistic” view of the Act, which has led to a serious misunderstanding of the finer intricacies and nuances of the Act and its implementation.

These arguments were largely expected and easily refuted by AFRA’s counsel pointing out that those who had caused the problem, and repeatedly failed to fix the problem, could not now claim they are the only ones capable of actually resolving the problem. The absence of an effective plan and the lack of diagnosis and resource assessment reflected that lack of preparation on the Department part, reinforcing the need for the Court to take steps to intervene on behalf of Labour Tenants.

The view advance by the Director General’s legal counsel that was unexpected was the assertion that unlike restitution, labour tenants rights were in fact not derived from the Constitution. The Department advanced that view that a distinction was needed between rights based land reform and policy based land reform. The former is based on the Constitution, the latter is at the discretion of the Minister and the Department, which may or may include legislation. If Labour Tenants are to assisted, then such assistance is then formulated by policy-based land reform, and these policy are discretionary to the Minister.

The view advance by AFRA is clearly that legislation cannot be trumped by policy and that Labour Tenants rights are not to be determined by arbitrary decision-making on the part of the Minister or the Director General.

Arguments were also heard in respect of the AFRA application to find the Minister in contempt of Court as a result of his failure to negotiate with the parties in good faith, and despite repeated requests from AFRA for him to desist from actions which violated the letter and spirit of the Court-regulated negotiations. The Minister legal representative insisted that the Minister acted in good faith and that AFRA, not the Minister, sought to scupper the negotiations.

Awaiting An Historic Decision by the Land Claims Court

The Court proceedings were adjourned and judgement is expected in the next five weeks. The Director of AFRA, Laurel Oettle, stated that:

“We have waited a long time to have our case heard before Court and we are relieved that it has finally happened. We are confident that our legal team and everyone involved in the case have represented that views of AFRA and Labour Tenants, and we believe that our arguments have been really well represented.

Naturally we are disappointed that it has taken so many years to get to this point but now that we are here we look forward, with cautious optimism, to the judgement. We must thank our Labour Tenant communities and their families for never giving up hope and remaining so steadfast. We also extend our heartfelt thanks to our many partners and friends who have shown solidarity with us over the years.”

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[Press Release] Labour Tenant Case Returns to Court next week!

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Labour Tenant Case Returns to Court next week!

Labour tenants, supported by AFRA and represented by the LRC, will return to court on the 10th – 11th of October 2016 to once again argue for the appointment of a Special Master to ensure the implementation of the Labour Tenants Act, as well as have the application for an interdict against the Minister heard.

The landmark case on behalf of over 19 000 applicants and 100 000 dependants has been an ongoing battle to ensure that the (Land Reform) Labour Tenants Act of 1996 is implemented. 20 years later, the lack of implementation of the Act has meant that Labour Tenants have continued to live with insecure tenure, further diminishing their rights due to the inaccessibility to basic services because of lack of title deeds.

On the 17th May 2016, after extensive consultation, AFRA entered into a time bound period of negotiations with the Department of Rural Development and Land Reform (the Department) and the Minister of the Department. The terms of that order, as well as AFRA’s concerns regarding aspects of the negotiations, were tabled before court. The agreement to negotiate was then made an order of court, with the aim of agreeing a Memorandum of Understanding before the end of June 2016. If those negotiations broke down, the parties would then return to court.

After a constructive start to negotiations, AFRA was hopeful that a more beneficial outcome for labour tenants could be achieved through a mutual understanding and partnership. However, the negotiations broke down after Minister Gugile Nkwinti made a unilateral decision to announce his intention to convene a “National Forum of NGOs” to determine terms of reference in respect of a programme for farm dwellers (labour tenants and occupiers) in the national press on the 10th June 2016. This decision was made despite the premise of the court order being that all items contained within the scope of the Memorandum of Understanding were for negotiation, including the possible establishment of such a forum. This decision was made without the consultation of AFRA.

Consequently, on the 8th of August 2016, AFRA with the assistance of the Legal Resources Centre, brought an application for an interdict against the Minister of Rural Development and Land Reform. AFRA also seeks a court order stating the Minister was in contempt of court by going forth with the establishment of the NGO Forum despite it being an item for negotiation.

As AFRA, we have no objections to the Minister or the Department hosting a forum of any NGOs on any matter they deem fit, except where such a forum is convened in contravention of an on-going legal process.

We acknowledge that the hasty attempts of the Department such as the issuing of section 17s and establishment of forums. However, our scepticism remains, due to the Departments persistent failure to comply with court orders, compelling them to submit a comprehensive plan and resources to addressing labour tenant claims. AFRA does not believe that the Department has taken the necessary steps for the long-term implementation of the Act.

It is for such reasons that the case will return to court to hear arguments regarding the appointment of a Special Master to supervise the Department’s implementation of the Land Reform (Labour Tenants) Act. The currently unprecedented appointment of a Special Master will grant special power to an independent individual to oversee and monitor the Department, regarding Labour Tenant Act. We believe that due to the persistent and systemic failures by the Department that this is the only course of action that can see the best interests of labour tenants adhered to.

Access has been granted for live streaming and photography in court. For those not able to attend, AFRA will be streaming the events in court on Facebook Live Stream.

For more information, interviews or pictures please contact our Media and Communications Officer , Tom Draper (tom@afra.co.za or 078 754 0700).

Resources:

What is a labour Tenant?

[Radio] AFRA Director Laurel Oettle talks on Labour Tenants Court Date

https://drive.google.com/open?id=0B1LaoM8PHfArR2lrTXhTN2tpUWc

[Radio] AFRA Fieldwork Researcher, Ndabe Ziqubu talks on Labour Tenants (for Zulu and Xhosa Media)

https://drive.google.com/open?id=0B1LaoM8PHfArS0N5NFFCQVNkZ00

[Photo] Labour Tenants protest and sing outside Land Claims Court after waiting 20 years for the implementation of the Labour Tenants Act. Photo: Tom Draper

https://drive.google.com/file/d/0B1LaoM8PHfArYm1oM2g1ZF9MT1U/view?usp=sharing

Meet Sipho Khumalo

I was born and raised on a farm in Normandien and later moved to Durnacol. My childhood was like any other rural child: I would wake in the morning to milk the cows and take them to graze in the mountains.

 

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I studied up to grade 12, but unfortunately could not finish. In 1993 I got my first job, working for a security company, and the following year I worked at the Mines in Durnacol. I was there until I got retrenched in 1999; since then, I haven’t had a formal job.

I am married to Duduzile Mabizela and have six beautiful kids. To support and feed my family, I have a poultry business, which I received training on at the KZN Poultry Institution. I also assist people with drafting their business plans, because I’m really good at it.

My activism was born from the struggles that we were constantly faced with while growing up and it was mostly inspired by my father – he was a very active man in the community. I remember in 1995 receiving a call from him. While I was away from home, informing me about an eviction notice he had received from the land owner. I felt helpless, but I knew that I had to do something. I searched for help everywhere, but back then, there were very few attorneys that worked on land matters. Eventually I heard about AFRA and they assisted in stopping the eviction.

In 1997, I was elected Secretary of the Dannhauser Crisis Committee, working hand in hand with AFRA, and I would refer land right violations matters to them. That very same year the Tenure Security Coordinating Committee (TSCC) was established, with representatives from rural communities across KwaZulu-Natal. The Land Reform Labour Tenant Act (LTA) and Extension of Security of Tenure Act (ESTA) had recently been passed. AFRA provided us with all the necessary information on these legislations and like messengers we were going in all rural communities informing them about the Acts and that they should not leave their farms.

I continued working with AFRA and in the year 2009, I was appointed as a Board Member. The experience has been challenging at time, but it is great to know that I have contributed to what AFRA is today. Being in this position has assisted me in my development and I have taken forward some of the lessons to the Dannhauser Crisis Committee. Its main purpose was, and still is to assist where there are evictions, livestock impoundment, and other land rights abuses. The committee has over the years grown and is now looking at developmental issues such getting the municipality to bring services in the community, and assisting farm dwellers in getting skills in cropping, livestock keeping etc. This committee falls under another structure that I am part of, the Siyaphambili Emajuba Farm dweller Association (SEFA) which is represented by farm dwellers in different local municipalities under Amajuba District.

SEFA together with AFRA is part, of an alliance for land and food justice in, called Tshintsha Amakhaya. I have had the privilege of attending local, regional and national platforms to share the struggles of farm dwellers in KZN, and to learn about others. From this, we are now working in solidarity with other community based organisations on joint human and land rights campaigns.

My involvement in all of these structures has inspired me to work even harder for the realisation and protection of farm dweller rights. While we wait for that to happen, the struggle for secured tenure continues!

Urgent Update: Minister convenes National Land NGO Forum in breach of Court Order

The Association For Rural Advancement (AFRA) has recently discovered that the Minister of Rural Development and Land Reform has invited a number of Non-Governmental Organisations (NGOs) to attend a meeting today, 29th July 2016, in Gauteng.

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In his invitation the Minister has stated that the purpose of the meeting will be:

“the establishment of the Forum, working together with the Department, which will be responsible, inter alia, for policy formulation, development of the National Programme for the implementation and monitoring and evaluation of progress in respect of the Land Reform (Labour Tenants) Act 2 of 1996 (LTA) and Extension of Security of Tenure Act 62 of 1997 (ESTA)”

In this context, AFRA is surprised that it did not receive an invitation to attend the meeting and is deeply concerned with the Minister’s decision not to invite AFRA to participate in the establishment of the national forum. We are also concerned by the repeated attempts of the Department to further delay the processing of labour tenant claims, which are clear set out in a very specific legal process, by confusing the process with regards to a broader programme for Farm Dwellers with a very different set of rights. The Department has systematically attempted to reduce the rights of labour tenants to the land which they have been promised by the Constitution that they should now have ownership of.

The Association for Rural Advancement (AFRA) has been represented by the Legal Resources Centre (LRC) in a landmark case on behalf of 19 000 labour tenants. This matter has dragged on for several years, and has caused significant harm to the tens of thousands of labour tenants and their families whose rights have systematically been violated by the Department of Rural Development and Land Reform (the Department) through their failure to process the large majority of labour tenant claims.

On the 17th May 2016, after extensive consultation, AFRA entered a period of negotiations with the Department and the Minister of Rural Development and Land Reform. The Minister had unexpectedly entered the Court proceedings in March 2016 with his own legal representative separate to that of the Department. The legal teams of the Minister, the Department and AFRA agreed to terms for the negotiations, with the aim of agreeing a Memorandum of Understanding before the end of June 2016, which were approved by the Judge. AFRA however still had several serious reservations and tabled these to the Court in the form of a Memorandum of Explanation. After a constructive start to negotiations, AFRA were hopeful that a more beneficial outcome for labour tenants could be achieved through a mutual understanding and partnership.

However, the good faith negotiations broke down after Minister Gugile Nkwinti made a unilateral decision to announce his intention to convene a “National Forum of NGOs” to determine terms of reference in respect of a programme for farm dwellers (labour tenants and occupiers) in the national press on the 10th June 2016. This decision was made despite the premise of the court order being that all items contained within the scope of the Memorandum of Understanding were for negotiation, including the possible establishment of such a forum. This decision was made without the consultation of AFRA. On the 21 June 2016, AFRA advised the Minister that his stance that he holds sole responsibility for the establishment of the national forum that will deal with farm dwellers was incorrect and in conflict with the provisions of the court order dated 17 May 2016.

AFRA maintains that the Minister ought not to have sent the abovementioned invitation to non-governmental organisations because the parties to the litigation have failed to conclude the memorandum of understanding. The Minister has indeed acted contrary to the mandate set out in the court order dated 17 May 2016. As such, AFRA is of the view that any forum of non-governmental organisations that may be established on 29 July 2016 will be constituted unilaterally by the Minister and is in no way related to the negotiations that were conducted in terms of the court order.

The effort of the Department and AFRA to engage in good faith negotiations have been undermined by the actions of the Minister. The Minister has thus far only restated his belief in the legality of his action and has failed to respond to the substantive objections raised by AFRA and its legal representatives. Accordingly, AFRA had no choice but to enroll the matter with Land Claims Court, as provided for in the Court Order of 24th May, to be heard on 10 – 11th October 2016. The persistent and repeated failures of the Minister to implement the law cannot be allowed to continue.

The Legal Resources Centre, on behalf of AFRA, yesterday requested an urgent written response from the Minister confirming the cancellation of the meeting that will take place on the 29 July 2016. AFRA has three staff members – Siyabonga Sithole, Zondani Mthalane and Nokuthula Mthimunye – at the venue of the Forum Meeting today in order to engage with fellow NGOs, answer any questions, and discuss the best way for Comrades in the sector to move forward in the best possible way to ensure that labour tenants rights are realised.

For more information, please contact:

Laurel Oettle, AFRA Director

Email: laurel@afra.co.za                                 Tel: 033 345 7607

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Zondani Mthalane and Nokuthula Mthimunye from AFRA outside the NGO Forum meeting venue this morning, 29th July 2016

MEDIA UPDATE: AFRA Returns to court in October for Special Master after negotiations break down

The Association for Rural Advancement (AFRA), represented by the Legal Resources Centre (LRC) in a landmark case on behalf of 19 000 labour tenants, will be returning to the Land Claims Court on the 10th October 2016.

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Labour Tenants from across KZN sing and dance as ANN7 broadcast the event live. Photo: Tom Draper

This historic legal case (Mwelase & Others v Director-General for the Department of Rural Development and Land Reform & Others) will set precedent as it seeks to have a Special Master appointed to oversee the full implementation of the Labour Tenants Act, twenty years after it was first promulgated by President Nelson Mandela. This is the long hoped-for resolution to a matter that has dragged on for several years, and has caused significant harm to the tens of thousands of labour tenants and their families whose rights have systematically been violated by the Department of Rural Development and Land Reform (the Department).

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Labout Tenants have no more patience for the ongoing delays. It has been 20 years since former President Nelson Mandela signed the Labour Tenant Act. Photo: Tom Draper

On the 17th May 2016, after extensive consultation, AFRA entered a period of negotiations with the Department and the Minister of Rural Development and Land Reform. The Minister had unexpectedly entered the Court proceedings in March 2016 with his own legal representative separate to that of the Department. The legal teams of the Minister, the Department and AFRA agreed to terms for the negotiations, with the aim of agreeing a Memorandum of Understanding before the end of June 2016, which were approved by the Judge. AFRA however still had several serious reservations and tabled these to the Court. After a constructive start to negotiations, AFRA were hopeful that a more beneficial outcome for labour tenants could be achieved through a mutual understanding and partnership.

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Advocate Michael Bishop addresses an unsettled crowd outside the Land Claims Court. It is uncomfortable to try and explain why something they have waited so long for is postponed again. Photograph: Tom Draper.

However, the good faith negotiations broke down after Minister Gugile Nkwinti made a unilateral decision to announce his intention to convene a “National Forum of NGOs” to determine terms of reference in respect of a programme for farm dwellers (labour tenants and occupiers) in the national press on the 10th June 2016. This decision was made despite the premise of the court order being that all items contained within the scope of the Memorandum of Understanding were for negotiation, including the possible establishment of such a forum. This decision was made without the consultation of AFRA.

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Labour Tenants rally before a march to the Land Claims court. Photo: Tom Draper.

The effort of the Department and AFRA to engage in good faith negotiations have been undermined by the actions of the Minister. The Minister has thus far only restated his belief in the legality of his action and has failed to respond to the substantive objections raised by AFRA and its legal representatives. Accordingly, AFRA had no choice but to enrol the matter with Land Claims Court, as provided for in the Court Order of 24th May, to be heard on 10 – 11thOctober 2016.

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LRC Advocate Michael Bishop pleads the case before Judge Mokotedi Mpshe. Photo: Tom Draper.

While we are disappointed and frustrated that the negotiation process has broken down, this was always one of the possible outcomes of our decision, and we are returning to Court with a much deeper understanding of the changes and challenges within the Department. This will be of great assistance to us as we move forward with determination in the ongoing fight for the rights of labour tenants. The persistent and repeated failures of the Minister to implement the law cannot be allowed to continue, and we believe that the appointment of a Special Master is the only way that the Land Reform (Labour Tenants) Act will be fully implemented, and the rights of labour tenants across the country be fully realised.

For more information, interviews or material please contact.

Tom Draper, Media and Communications Officer. AFRA.

Phone: 078 754 0700

Email: tom@afra.co.za