EVICTION OF FARM WORKERS IN SOUTH AFRICA: PROGRESS AND CHALLENGES
13 August 2007
Since Colonial period until the end of apartheid, the history of South Africa is well orchestrated with land dispossessions. Most of these dispossessions happened in the farming areas where Africans were displaced from the land that they had always considered home. The Native Land Act of 1913 made the right to own, rent or sharecrop on land dependent on race. Black South Africans could not purchase or lease land from whites outside of the reserves (which later became the Bantustans), which at that stage incorporated about 8% of South Africa's land area. The Native Trust and Land Act of 1936 increased the reserves to about 13% of the land area. Under the Native Trust and Land Act, Africans were denied the right to purchase land even in the reserves, and could only utilise communal land administered by government appointed tribal authorities. Black South Africans, who owned land outside the reserves prior to 1913, were initially exempted. The result was the creation of 'black spots' of farming communities in white areas. Over 600,000 people were subjected to forced removal from 'black spots', from the 1950s through the 1980s '.
Since 1994, the democratic government has developed measures that would allow access to land and ensure security of tenure for all South Africans. The bases for all the initiatives undertaken were on the Constitution, which protects the rights of all individuals and vests on them and institutions, the responsibility to protect those rights. Legislation that begins to regulate people's occupation of and eviction from other people's land was passed. The most important pieces of legislation are Extension of Security Tenure Act (Act No.62 of 1997), Labour Tenants Act (Act No.3 of 1996) and the Prevention of Illegal Eviction and Occupation of Land Act (Act No. 19 of 1998). However, despite passing the acts to prevent the eviction of farm workers, they are still evicted and maltreated on the farms. Many farm owners blamed the new tenure and labour legislation such as proclamation of minimum wage as cause for increase in retrenchment and eviction of farm workers.
This paper is looking at the state of eviction of farm workers in particular at progress made and the challenges faced. However, due to lack of credible data available on number of evictions taking place it is difficult to assess the extent of the problem and the impact of related legislation and programmes undertaken. The only available latest data is the National Eviction survey of 2005 commissioned by the Nkunzi Development Agency.
2. Tenure Security
Tenure security refers to the degree of security that a person has in order to reside on and enjoy rights rather than ownership rights. In South Africa, people who need their tenure security rights strengthened are labour tenants, farm workers and people living in the former homelands. Strengthening tenure security comprises the third leg of government's land reform programme, namely tenure reform.
In the pre-1994 period, it was easy for landowners to get court orders to evict farm dwellers. The process was handled in magistrates' courts under common law procedures and, provided that the person applying for the eviction order was the owner of the land, he or she could obtain an eviction order without having to provide any reason. There was no special notice requirement to give consideration to the fact that people were losing their homes. There was also no need for alternative accommodation or land to be available. As a result a large number of eviction orders were default judgements issued in the absence of those being evicted and a far larger number of evictions were implemented without any court process at all.
With the new democracy, the right to security of tenure is now enshrined in the Constitution. Section 25(6) of the Constitution provided that:
"A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure, or comparable redress."
In line with this requirement two main pieces of legislation dealing with land tenure for farm workers and labour tenants were passed by the democratically elected government, namely the Extension of Security of Tenure Act commonly known as ESTA and Land Reform (Labour Tenant) Act known as LTA.
3. The Extension of Security of Tenure Act (ESTA), 1997 (Act No. 62 of 1997)
The primary purpose of the Act is to protect farm dwellers, referred as occupiers in ESTA from eviction and to ensure that evictions occur in a lawful and constitutional manner. It sets out the right and duties of landowners and farm dwellers and the procedures that must be followed in order to lawfully evict a person from the land.
Firstly, ESTA prohibit eviction of any person from land if he or she has permission to be living on without a court order. Secondly, It allows those who have lived on the farm for more than ten years and are over 60 years old or unable to work due to disability to stay on the farm for the rest of their lives, unless they breach conditions defined in ESTA or agreement in terms of which they stay on the farm. Thirdly it requires notice of intended eviction application to be served on the local municipality and the Department of Land Affairs. Lastly it requires that under some circumstances, occupiers should be given alternative accommodation if they are to be evicted.
One of the shortcomings of ESTA is that it fails to create procedure, through courts or other structures, for farm dwellers to be able to get confirmation of their rights to land. Without long-term security, farm dwellers continue to live as tenants on other people's land. ESTA also focuses on measures to regulate instead of preventing evictions.
3. Land Reform (Labour Tenants) Act, 1996 (Act no. 3 of 1996) as amended
The Land Reform Act provides labour tenants the same procedural rights as other occupiers in terms of ESTA. The Act differs from ESTA in that it not only places restriction on eviction but also provides a limited opportunity for labour tenants to claim ownership of land that they occupied and use. One of the obstacles to labour tenants gaining ownership of land through LTA is the difficulty in proving that they are indeed labour tenants in term of the Act. Another obstacle is the limited assistance that the Department of Land Affairs (DLA) provides to secure the land in cases where persons have managed to prove that they are labour tenants.
4. Prevalence of Evictions
A scourge of evictions has plagued South African farms since the colonial era. It was the inequality in power between farm worker and farm owner and a lack of effective legal mechanisms to protect farm dwellers that creates power imbalances that contributes towards evictions occurring. It is estimated that during a thirty-year period (1950 -1980) between 1,2 and 1,4 million people were evicted from predominantly white-owned farms in South Africa. Almost 1.7 million people were evicted from farms1984 to 2004.However, since there are no recorded and accurate statistics on the number of evictions that takes place, it should be noted that the 1.7 million evictees represent a conservative calculation.
The study on the national eviction surveys establishes that a total of 4.2 million people have been displaced from the farms from 1984 to 2004, with only 20% of those having left of their own wish. The remaining 80% had to leave due to some external pressure. It is quite interesting to note figures revealed that fewer people were evicted in the ten-year period leading up to first democratic elections compared to the ten-year period 1994-2004. This indicates that the enactment of ESTA and LTA was not able to curb eviction trends. This further raises questions about implementation of legislation and government tenure reform programme.
The vast majority of evictions were carried without formal or legal procedure being followed. Only 1 % of farm evictions followed any legal process, and many of evictees were not aware of their rights during the eviction. Over 90% of evictees only received verbal notices that they had to leave the farm. Short notices imply that farm dwellers do not have opportunity to get assistance to challenge eviction. In addition there were constructive evictions whereby the farm worker leave due to severe mistreatment by the landowner, which involve physical and verbal abuse, cutting off from facilities such as water, electricity, not allowed to graze on the farm.
The notion that farm dwellers should be provided with alternative accommodation as required by ESTA was ignored. More than 60% of adults evicted had lived on the farms for more than ten years. Almost 15% of adults and 56% of children who were evicted from farms were born on the farm, which they were evicted. A number of those were on the farm for more than ten years and were evicted because they were too old or too sick to work on the farm and were therefore forced to leave. In terms of ESTA, these farm dwellers would at least be classified as long-term occupiers and therefore should have been allowed to remain on the farm for the rest of their lives. The study also shows that the most directly affected by evictions are women and children. It shows that more than three quarters of those evicted in the farms from 1984-2004 were women and childrens
ESTA and new Basic Conditions of Employment Act (BCEA)
1 38 308
Source: Nkunzi Development Association and Social Surveys Briefing to Portfolio Committee on Agriculture and Land Affairs, August 2005.
The table above shows the years where most evictions took place and the reasons for that. In terms of the table highest percentage of evictions were 1984, 1992, 1994 -1997 and 2003. The following reasons were given as the cause for increase in the number of evictions during these years:
The table shows that the main peak in evictions occurred in 1992 following the severe drought of 1991/92 and also after 1984 drought.
Most of the evictees gave employment related reasons for having been evicted. A number of households were evicted after the death of the family member who was employed in the farm. Some of those evicted in these kinds of circumstances were children left without any adult family member to provide or care for them. Due to mechanisation and new technology, a number of farm workers lost their jobs, as they were no longer needed. The cause of 15.7% of the evictions was the main family breadwinner being fired.
Labour laws and regulations
In 2003, the Department of Labour introduced a sectoral determination to regulate employment conditions in South African agriculture. This imposed a minimum wage of R650 per month in some magisterial district and R800 in others, which was later raised to R713.65 and R871.58 respectively. The determination also specified other conditions of employment such as maximum working hours and minimum safety standards. The percentage of people evicted from farms during 2003 was more than double of the previous three years. During this period, a high proportion of evictions from farms were due to employment related reasons.
Enactment of Tenure reform legislation
The peaks in the eviction trend seem to coincide with enactment of L T A in 1996 and EST A in 1997. It was influenced by concerns of farmers to conform to new legislation. However, although the number of evictions increased slightly around the time these Acts were put in place, the consistent pattern of evictions before and since indicates that these Acts have done little to prevent evictions, and they are not the significant cause.
Despite passing the acts to prevent evictions, farm workers are still evicted and maltreated on the farms. There are no recorded and accurate statistics on the number of evictions that take place. The continuity of illegal evictions indicates a failure by the justice system to ensure that those who undermine the law are punished and illegal evictions are not allowed. The reason for that is that police and magistrates do not appear to regard illegal evictions as crimes and fails to take effective action.
Lack of legal representation for farm dwellers. Farm dwellers that are threatened with eviction need proper legal representation during court proceedings that would lessen 'legal' evictions. The legal aid system to assist farm workers facing evictions is under-funded and most attorneys are unwilling to take on eviction cases. The legal challenge by the Nkunzi Development Association in 2001 resulted in an important judgement by the Land Claims Court (LCC) that indigent ESTA occupiers facing eviction proceedings are entitled to legal representation at the state's expense. The State failed to give effect to this judgement.
Lack of awareness of rights: This is because a high proportion of farm workers are illiterate and have little access to media.
Lack of capacity to implement ESTA: the provincial land reform offices of the DLA are understaffed relative to task they are charged with.
There are weaknesses of coordination within DLA as well as between DLA and other government institutions on which ESTA implementation depends, specifically municipalities.
Despite ESTA's protective provisions, in practice women's security of tenure is contingent on the presence of a male partner. As a result in some cases women get evicted when their male partner is evicted following retrenchment or dismissal.12
Evictions of farm workers have continued unabated in post-apartheid South Africa. More people have been evicted from white farms in the first ten years of democracy than were evicted in the previous ten years under apartheid rule. Several reasons influenced evictions but economic reasons feature more as the cause. This is due to the fact that land tenure for farm workers is largely link to employment. At the moment there is no effective programme to limit the scale of evictions or to ensure viable settlements for those displaced from farms. Urgent policy and programme steps are needed to reverse the trend and establish new relations in commercial farming areas.
The Minister met with provincial ministers in January 2007 to deal with the issue of farm evictions.
Following that meeting what plans have been put in place?
Closing of the gaps in the ESTA and LTA has been in pipeline for long. However, it does not appear in the legislation programme for 2007, which imply that it has been put on hold again. The Department should inform the Committee on the progress and the reasons why is taking long?
According to court order farm workers facing evictions are entitled to legal representation at the state's expense. Can the Department provide lists of farm workers it has assisted since 2001?
One of the challenges facing implementation of ESTA is lack of coordination within the Department itself and between the Department and other departments such as safety security. What measures have been put in place to resolve this?
Dawood, S. 2004. An overview of Land and Agriculture reform in South Africa
Hall, R. 2003. "Farm Tenure" In Evaluating land and agrarian reform in South Africa: An occasional paper series, no.3. PLAAS, University of the Western Cape.
Hall, R. Kleinbooi, K. & Mvambo, N. 2001. What land reform has meant and could mean to farm workers in South Africa. A paper presented at the Land Reform and Poverty Alleviation in Southern Africa HSRC Conference, 4-5 June, Pretoria.
Republic of South Africa, 1996.The Constitution of the Republic of South Africa Act (108 of 1996)
South African Human Rights Commission (SAHRC), 2003. Final Report on the inquiry into the Human Rights Violations in Farming Communities.