The living and working conditions of farmworkers, farm dwellers and farmers: engagement with relevant departments

Meeting report

The Chairperson said the meeting would be a joint portfolio committee meeting between the Portfolio Committee on Agriculture, Land Reform and Rural Development and the Portfolio Committee on Employment and Labour. The meeting was happening against the backdrop of the celebrations of National Heritage Month, and it was hoped that the country would showcase its diversity during the month. The two committees were to receive briefings from the Department of Agriculture Land Reform and Rural Development (DALRRD); the Department of Employment and Labour (DEL); Legal Aid South Africa; and the Department of Cooperative Governance and Traditional Affairs (COGTA); to deal with specific observations that had emanated from an oversight meeting of the nine provinces of South Africa. The committees in the joint meeting were to discuss the policies and legislation on the living and working conditions of farm workers.

Briefing by the DALRRD on the living and working conditions on the farms                                  

Mr Bonginkosi Zulu, Acting Deputy Director-General: Land Redistribution and Development, DALRRD, presented that the tenure reform was aimed at protecting, securing, and strengthening the rights that people had over land, especially where those rights were weak as a result of racially discriminatory laws and practices.

The DALRRD had developed the Farm Dweller programme. It had brought together various government stakeholders to fulfil the different constitutional obligations that would go a long way in providing, not just tenure security but overall upliftment in the quality of the living conditions of farm dwellers, through the provision of housing, municipal services, and economic opportunities in agriculture.

The tenure reform was right based and there were no programmes derived from those legislations that targeted only women and the youth. The target was all farm dwellers and labour tenants; however, the Department had maintained information on women and the youth who had benefited through land tenure reform programmes. The Department used grants and subsidies to acquire land in section 4 of Extension of Security of Tenure Act (ESTA) and section 26 of the Labour Tenants Act.

Types and nature of land rights violations

1. Evictions through court orders.

2. Illegal evictions (without a court order).

3. Threatened evictions.

4. Constructive evictions (denied access to water & demolition of houses).

5. Labour tenancy disputes.

6. Burial rights.

7. Livestock disputes (grazing numbers).

8. Denial of Burial rights Restrictions on livestock numbers.

9. Demolition of residence or houses.

Due to the large volumes of those cases that had been reported in the nine provinces through 44 Districts, a separate report would be submitted to the committee with all the details of the interventions by the Department.

Eviction monitoring strategy

The DALRRD offices around the country served all 44 districts even though they currently lacked capacity. The land tenure unit only had 132 posts that were filled and that constituted an average of three officials per district, who were also responsible for other programmes.

See presentation for further details

Briefing by the Department of Employment and Labour (DEL) on the living and working conditions in the farming areas of South Africa                                                                                                                                Ms Aggy Moiloa, Deputy Director-General: Inspection and Enforcement Service, DEL, presented that a seminar had been held in the farming sector on 24 June 2022 which 132 people attended. Three Advocacy sessions were held in KwaZulu Natal (KZN) that were attended by 405 people between 4 and 5 August 2022. The National Occupational Health and Safety session on Agriculture and Workers Rights was held on 19 November 2020. Three advocacy sessions were held in the Northern Cape for farm workers and farm owners, and three radio sessions were held in the Northern Cape (Upington) for the agricultural sector.

The statistics relating to the working conditions of farm labourers had shown that 2951 farms had been inspected in the 2021/22 financial year.

Seasonal workers                                                                                                                                       Farmers, especially in the Limpopo province, had resorted to the employment of seasonal workers through employment agencies (labour brokers). The seasonal workers would not be the employees of the farmer/farm owner but would remain as the employees of the agencies and would only be employed for a short period of time (such as during the fruit picking season). That had resulted in short term employment wherein the workers would rotate from farm to farm through the agencies during that period but, were not covered or protected by the Basic Conditions of Employment Act’s sectoral determination 13 because the employees were deemed to be employed by the agencies and not by the farms.

Inspection strategy budget

No budget was allocated specifically to the inspections in the farming sector; however, the budget allocated to Inspection and Enforcement had also been used to cater for the inspections in the farming sector. The inspections conducted daily in provinces by the inspectors included inspections in the farming sector. There was no specific strategy for the farming sector. However, the inspection strategy of the Department covered all sectors, including farming.

Resources and professionalisation                                                                                                                  The Inspection and Enforcement Service (IES) had a total of 2106 officials consisting of inspectors who specialised in the different areas of legislation, such as Basic Conditions of Employment Act (BCEA, National Minimum Wage Act (NMWA), Unemployment Insurance Act (UIA), Compensation for Occupational Injuries and Diseases Act (COIDA), Employment Equity Act (EEA), Occupational Health and Safety Act (OHSA), administrative support and statutory services. The inspectors had been recruited and appointed in line with the required qualifications for the legislation to be enforced (e.g., for OHS – an engineering qualification or equivalent). There were no statistics available on labour brokering.

See presentation for further details

Discussion

Ms B Tshwete (ANC) said the Committee had received the presentations very late and it was disappointing that there was only one political executive authority present in the meeting, which was very concerning. She asked the DALRRD to present its programmes and interventions that had targeted women and the youth, as those had not been found in the DALRRD’s whole presentation. Could the DALRRD confirm if it was implementing programmes to that effect? If it had such programmes, what were they and where were they implemented?

On slide five, the “Ingonyama Agri-Villages” had been mentioned. Even though there were pilot programmes in the North-West, the concern remained that the “agri-villages” might be dumping sites for the farm dwellers. Those would not tackle the problem of farmers evicting farm dwellers. Could there be a way for the DLARRD to acknowledge when it had failed to secure tenure rights? On slide 18, the proclamation of the coming into effect of the ESTA amendment was very unclear, uncertain and not specific. The presentation stated that the proclamation would be on or before December 2026, while some officials stated it would be during the Committees’ site visit in September.  

Mr N Hinana (DA) said that among the farm dwellers, the women and the children were the most vulnerable. He asked the DALRRD what policies were in place that enhanced the rights of women. The Committees had noticed that the children in farming communities were not in school because of the lack of transport. Those in school had to walk long distances and lacked security.

To the DEL, he said the provision of safety sessions/awareness campaigns in the Advocacy programme had lacked details of what was being conveyed in that programme for the farming communities. On the agri-villages, he recalled that in a previous joint meeting, the Committees had received a recommendation that the DG of the DEL had to be informed as to where a tenant would be relocated to, before that tenant could be evicted from an agri-village. Alternative places had to be found for the tenants and the DEL had to ensure that the tenants were legally represented in court. The Committees had been confronted with evictions that had not followed that protocol; what were the municipalities doing to cater to those affected in farming areas?

He suggested that advocacy had to include educating people in farming areas about their rights; what was the DEL doing in that regard? There had been a common complaint in all the areas that were visited, that a long time ago, a former Minister promised the people that solutions would be found for their plight, but no one had come back to people after several years. There was a need to reassure the people that the Committees had come up with solutions and not to only listen to the plights as had been the case previously.

Ms K Mkhonto (EFF) asked if there was any possibility for the farm workers to access legal representation from either the Legal Aid Board or any government sources without involving the police and the officials, because there had been a high level of complaints on alleged corruption from the SAPS and the officials from both the DALRRD and the DEL. Could those farm workers be helped legally without getting assistance from the two departments? The presentation from the DALRRD did not seem to have any programmes targeted at the women living on the farms. The Committees had also observed the vulnerability of the children living on the farms, who were exposed to all manner of activities that were wrong; the children were even deprived of their right to education.

Were institutions like Childline and the Human Rights Commission aware of the conditions those children had been subjected to? Were Childline and the Human Rights Commission involved in ensuring that the children were not exposed to the harmful practices that the Committees observed during visits? It was very abnormal, for example, for large families to live in only one bedroom where the parents had been constantly drunk. Just imagine what those children were exposed to. It was good that the DEL conceded that it did not have specific programs for the farming communities; the Committees would have to start looking for solutions. The issue of labour brokers was not only prevalent in Limpopo but also in the Free State. Even the illegal immigrants were targeted by those brokers, who sometimes promised the immigrants employment for a pre-paid fee, which, once paid by the immigrants, could not be refunded and the promised employment was not guaranteed.

Mr S Mdabe (ANC) asked the DALRRD what it would take to a structure that would ensure that there was capacity to deal with the evictions, especially on the eviction monitoring strategy. As appointed by the land claims court, the Office of the Special Master on labour tenants said there were outstanding labour tenants claims totalling 9 333. Could the Committee be briefed on the attempts that had been made to reduce those claims? On legal services support to farm dwellers and labour tenants, the budget allocation and reports had referred to R159 million and R161 million for the families. What could the Committees say was the value for money on those legal services, support and expenditure for what had been achieved so far?

Did the IES have a database of the registered farms in each province? If yes, what percentage of the farms had been inspected per province? What was the ratio of inspectors per province, based on the database of the registered farms per province? On the DEL, what could be the reason for a lower inspection rate on the Employment Equity Act, UIH and OHSA compared to the BCA and the National Minimum Wage Act? Did that have a relation or correlation to the number of specialised inspectors per province or could it be attributed to budgetary constraints that had not allowed for the employment of the needed inspectors?

Mr N Masipa (DA), on the rapid response on rural safety, said that during the Committee’s visit to KZN, the farm workers had suggested some measures for the safety of labour tenants. How was the rapid response operating and had it integrated the labour tenants, farm dwellers and farm workers? Could the departments brief the Committees about the consultations and measures that had instigated the rapid response? On slide 25 of the DALRRD’s presentation, the budget for farm reform was zero aggregated and it was not easy to see how much had been budgeted for settling the labour farm applications, for settling legal services of the farm dwellers, and for dealing with extra acquisitions or interventions. Could the DALRRD present the report which itemised all the line items? The Committees were unhappy about the lack of representation of the executive authority, especially from the ministers, in such an important meeting.

The Committees were informed by an official, that the Secretary for the joint meeting had registered apologies from the ministers and the deputy ministers from both departments. The matter would be investigated to ensure that the executive authority would attend future meetings.

Mr MK Montwedi (EFF) said that the fact that the members of the executive authority had tendered their apologies was acceptable. Illegal evictions were a very big issue, and the people were still being subjected to unacceptable conditions on the farms where they were born and on the farms they called their homes. The departments were not doing enough to reach out to those people. In certain areas, the farm dwellers were being illegally evicted willy-nilly. There was a case where somebody had to be hospitalised, and the ambulance had picked him up from the farm, only to return to the farm to find himself locked out. It was also mentioned that property belonging to labour tenants had been regarded as part of the private property, where a person who had built his/her house could find himself/herself being locked out by the farm owner who claimed the property. What had the departments thought needed to be done?

That was a serious matter because the people removed from the farms suffered. The Committees needed to know how quickly such matters would be responded to and what efforts were being made to take such matters to court.in record time. It was distressing to find out that some departmental officials had advocated in favour of white farmers by suggesting that the farming labourers be relocated into shacks that the white farmers would build. That was a serious concern in the Committees’ engagements with farm workers, especially in the North West province.

Mr G Hendricks (Al Jama-ah) asked if there had been a court order on the farms to identify the wrongdoings of the apartheid policies to open the doors to issuing the right-to-occupy certificates to farm dwellers. Was there any indication of the return of the ‘dop system’, which especially affected coloured farmers, as a form of modern slavery? Could the DEL clearly indicate whether it had not or had not picked up any signals of a ‘dop system’ or slavery at the farms? Millions of Rands were being paid to law firms and the Committees had heard that the accessibility of the police and the officials was a problem. The Committees knew that the senior black students at the country’s universities could help with pro-bono legal services, thereby providing easy access for farm workers. That could speed up the work that the expensive law firms had now done. The Committee wanted to know whether the inspectors of labour were satisfied that there was equal pay for equal work for females and teenagers compared to males.

Mr N Capa (ANC) said there had been an implication of a lack of understanding of the legislation from both the farmers and the farm workers. That could be looked at from two angles: the lack of awareness and the arrogance of the farmers. That was a problem because if the farmers employed private security and farm-watch to protect their property, that meant the farmers were interested only in enforcing their own rights. All those things had been happening despite the presence of existing legislation. It was interesting to see whether there were loopholes in existing legislation. The lawmakers had to ensure that the laws were made effective or were amended to have an effect in dealing with the conditions of the farm workers and the farm dwellers. It was important to ensure that change happened after all the site visits undertaken in the provinces.

Mr S Matiase (EFF) was disappointed with the absence of the executive authorities in the meeting. He said that research-based evidence about the plight of the farm workers, farm dwellers and labour tenants had been out there in abundance, and it was not difficult for the officials to get the information. It was on record that, of the three programs: land reform, land redistribution and restitution and land tenure; land tenure had not received adequate attention to secure the land rights of the labour tenants and the DALRRD had to present that information in graphs and figures to the committee. That programme was lagging behind and the special advisor on labour tenants had been settled with no less than 9 000 labour tenants’ claims. It was shocking that millions, if not billions, of Rands had been spent in the name of labour tenants. The DEL had to state who had benefited from those enormous amounts of money.

In the last site visit to KZN, there had been a case of an absentee farmer who had inherited a farm from his late mother and had come to serve notice on a farm dweller in the winter period. Not a notice of eviction but constructive eviction and that happened soon after the Committee had visited KZN. As a result, a lot of limitations were imposed. That farm dweller had 65 cattle, 20 sheep, 25 goats and eight horses. In the letter of the limitation of rights, the farm dweller was instructed to halve all his livestock and their grazing movement, and to restrict the number of people who could visit him. His burial rights were also withdrawn, which was the lived reality faced by the people on the farms daily. The officials of the departments were playing the Committees. The last slide in the DEL presentation indicated that there was no data on labour brokers in the farming sector, but the DEL said it had many inspectors who had conducted inspections on many farms across the country. The question was, as those inspectors went about their inspections and discovered that, in Limpopo, the farmers were engaging the services of labour brokers, why could the DEL not provide a list of the labour brokers from Limpopo? The Committee was being taken for a ride and lied to by the officials, who were very good at concealing information and that could be a result of two factors: the officials had not been doing their work and they had been trapped in the culture of the impunity of no consequences for not performing their duties.  

Ms T Mbabama (DA) was discouraged by responses because it was difficult to reconcile what was seen on the ground during the visits to the farming communities and what had been presented by the departments. However, the Committees had to take cognisance that the departments were thinly stretched. It was therefore difficult to anticipate what was going to happen moving forward. Was the status quo then going to remain the same as the department said it could not reach everybody? On the Agri-villages, the Committees had seen that the houses in the Northern Cape were great, the yards were fine but it was just a village that had been dumped in the middle of nowhere with no schools, clinics and other amenities. What then was the plan around those agri-villages? Would other departments such as health and education be part of the discussions to make those agri-villages liveable? Even though eviction monitoring strategies were being discussed, illegal evictions were still rife. Even though the DALRRD had spoken about running awareness campaigns, the people on the ground had repeatedly disputed that assertion. The challenge for the Committee was figuring out what to do knowing that the programs were there but the departments had limited capacity to operate.

The Chairperson said the Committees had not seen any reports that the departments had alluded to having submitted. Only two reports were received from the North West and the Limpopo province respectively. Unless the reports were sent on the morning of the meeting, it would be misleading to suggest that all the reports from the provinces had been submitted. The DALRRD had stated that its farm dweller programme was linked to the District Development Model (DDM). During the oversight visits, the Committees could not remember any site where there was a demonstration of how the DDM worked in the farming communities, especially regarding tenure security. Could the DALRRD demonstrate an example of such a case and submit a written report of the DDM intervention to support the tenure reform?

On the key policy to accelerate farm policy for farm workers; nothing had been mentioned about that policy in the presentation. Could the DALRRD confirm if that policy was still being implemented and further submit a written report about the 50/50 cases across the country? On the experiences of the joint Portfolio Committee on Agriculture, Land Reform, and Rural Development; and Employment and Labour; during the recent oversight visits in KZN, there were reported cases of security concerns of the farm dwellers and the labour tenants. A particular family had reported to the Committee that the family had lived under constant harassment by the SAPS. The landowner and private security firm (ITEMBA security) were working together with the local police.

The people had reported being constantly beaten, their property damaged, livestock stolen and impounded unlawfully by farm owners to the extent that there was 865 head of cattle that had been impounded and never returned. Police cases had been opened but no investigations had taken place and no prosecutions; nothing had been done to bring the perpetrators to book. The people had reported losing everything and therefore, the issue of rural safety strategy was very important. What were the departments doing to ensure the safety of farm dwellers, farm workers and labour tenants? Could the departments submit a report on the processing and settlement of all the labour tenants’ claims across the country, including a budget plan, and expenditure as budget requirements for the settlement of the outstanding labour tenant claims?

Responses from the departments.

Mr Terries Ndove, Deputy Director-General: Land Redistribution and Tenure Reform, DALRRD, responded that there was a miscommunication regarding which reports need to be submitted. After verification, as much as all reports had been done, the Department thought that the reports that had been specifically requested were the three reports from the North West, Limpopo and the Northern Cape. However, all the reports were also available, and would be submitted timeously.

Mr Zulu responded that the DALRRD had land distribution programs targeted at women and the youth. The DALRRD was also specific about tenure reform, as mentioned in the policy on beneficiary selection and land allocation. Women, youth, and farm dwellers were the targeted priorities, and the allocations had to be 50% for women. On the issue of agri-villages, it was a concern that the Department had tried to explain, but in piloting that programme, the Department would acquire land for the farm dwellers. However, the fact that the farm dwellers had been subjected to various limitations such as rights violations, renovation of their houses, and access to basic services, amongst others; was forcing the Department to think that the agri-villages were a better model to apply.

That had been to ensure that the land acquired would be given to the farm dwellers for them to have long term security of tenure and receive all the services. There were instances where the evictions had been legal. In terms of the current law, evictions were lawful, provided an associated court order was issued. In some cases, the DALRRD, via legal representation, fought the cases in court until the court ruled otherwise. When such persons were resettled, the Department ensured that they were resettled in agri-villages to access services. In the North West, the programme was set up so that all other government departments, through the municipalities, were involved and had to participate in line with their constitutional mandates.  

The agri-villages concept had been thoroughly debated to avoid being seen as a dumping site. The fact that the farmers brought in people from their farms to the agri-village did not make the villages a dumping site. The model prohibited any indication that made the agri-villages look like a dumping site. On the regulations, through the legal services, once the regulations had been drafted and vetted, they went through the political principals and were publicised for 60 days for public comments. The DALRRD had come across situations where the youth and children did not have access to services. Such matters had been referred to the Department of Social Development, the Department of Education and even the Department of Health.

Recently there was a case of a lack of school transport and the colleagues in KZN were asked to liaise with the education and health departments to resolve the matter. In terms of the current laws, the evictions were lawful if there was an associated court order; otherwise, the evictions would be deemed illegal. The DALRRD helped those needing court representation to fight evictions through Legal Aid South Africa. All the illegal evictions were defended if brought to the attention of the Department. On the matter of legal representation for farm workers without going through the SAPS or the officials was part of the program through Legal Aid SA, which the communities could contact directly without going through the Department or SAPS to get legal representation.

The Chairperson said it had been incorrect for Mr Zulu to present that the Committees had requested only three reports, the letter that was sent out had stated that all the reports were needed. It had to be ensured that all the reports were sent to the respective joint committees no later than the end of the business day. The Committees would then take responses from the DEL. Building a capable and developmental state was one of government's priorities, and the public sector was critical to that. Could the DEL confirm that all their inspectors were law graduates? How many of those inspectors were working without law and legal qualifications? The rest of the meeting would be chaired by Mr Nontsele.

Ms Moiloa, responding on the cars that were not fit for use, said most of the DEL’s fleet struggled when accessing some farms but there was the option of hiring short term vehicles. On whether there existed a provincial database of farms and ration of inspectors, the information could be provided in writing to the Committees at a later stage. On why there were lower inspections in terms of the employment equity, the DEL was thin on resources, and efforts were being made to correct that. On being aware of slavery tendencies and apartheid abnormalities, the DEL took the prevalence of exploitation through the law processes. For instance, paying employees below the national minimum wage was considered modern-day slavery. The working conditions involving exploitation elements were also tested via the Department’s basket of legislation.

On whether the Department’s sectoral determination had a human rights element, all the laws had stated that all workers’ rights were human rights. On whether the DEL looked at equal pay for work of equal value as well as ensuring that there were no pay disparities between men and women; that was tested through the Employment Equity Act and the conduct Director-General’s review which was a substantive way of looking at compliance to the Employment Equity Act rather than procedural compliance. On whether the DEL had statistics of labour brokers, from a legal point of view, the Department did not necessarily deal with labour brokers. Regarding legislation, the labour brokers were regarded and dealt with as employers. On how many inspectors were working without legal qualifications, no inspector was working without a legal qualification.

Briefing by Legal Aid South Africa (Legal Aid SA)                                                                                                             Judge Motsamai Makume, Chairperson: Board of Directors, Legal Aid South Africa, said it was an honour to present to the committees, the report of the entity for the last six months, even though the board took over only in January 2022. What preceded the takeover was that the Portfolio Committee on Justice, over the years, had been asking for the takeover of the legal representation because of lack of access to justice for the vulnerable. The takeover was not without problems necessitated by a unit that was critical and that engulfed other ministries yet not optimally functioning. When the board took over, it found that no money was transferred to it, so the board took a conscious decision to vote in R33 million from the entity’s reserves to start the unit in January 2022. That enabled the employment of the people who set up structures for the unit. The money only came in in April (R33 million) and the unit has already begun by then.

Ms Mantiti Kola, Chief Executive Officer, Legal Aid SA, presented that in terms of the transitional arrangements, Legal Aid SA’s Land Rights Management Unit (LRMU) had received 740 files with a contingent liability of R144.6 million from the DALRRD. That included 645 active matters and 95 matters in abeyance. Legal Aid SA also implemented the LRMU’s internal management infrastructure and service delivery infrastructure to manage and render legal services taken over from the LRMF due to the funding streams.

LRMU Service Delivery Model

• Legal Aid SA was currently utilising the Panel of Attorneys that provided legal services to farm occupiers, labour tenants and land restitution claimant for the LRMF.

Legal Aid SA intended to follow the salaried Legal Practitioner model per province to provide legal representation to farm occupiers, labour tenants and land claimants post the transitional phase.

Mr Thabiso Mbhense, Legal Executive: Land Rights Management, Legal Aid SA, presenting on land tenure rights violations, said that the violations had been categorised as:

• Evictions, where the landowners had issued court papers for evictions
• Threats of evictions, where the landowners had threatened to evict the occupants
• Denial of burial rights, where the occupants were denied the right to bury their deceased family members on farms.
• Constructive Eviction, to make the living conditions unbearable for the occupants
• Interference with occupants’ grading rights, where the landowners reduced the gracing camps.
• Renovation of houses, where the occupants were denied the right to renovate their houses
• Landowners cut off access to water, where the occupants and /or their livestock were denied access to water.

Tracking and Monitoring of Evictions

Evictions were tracked and monitored through the National footprint of 128 offices (64 local offices and 64 satellite offices), toll- free advice line and a Please Call Me facility.

See presentation for further details

Briefing by Department of Cooperative Governance and Traditional Affairs (COGTA)

Mr Mpho Mogale, COGTA, presented that in instances where eviction had been granted by the court and the rights and needs of the elderly, children, disabled persons and households headed by women had been considered; the municipality had an obligation to undertake the following:

1. Careful consideration in implementing the eviction process concerning human rights.

2. Follow, in detail, the directives ordered by the court over the eviction proceedings.

3. Providing the occupiers with alternative accommodation with water and sanitation facilities.

4. Where there were immigrants, determine the status of the immigrants and assist those who qualify to apply for housing.

The municipalities could also support farm dwellers and labour tenants’ victims of evictions by providing them with temporary shelter.

The municipalities played a key role in water provision through water truck supply and sanitation (e.g. VIP toilets provision), and engaging with the local businesses and various NGOs to provide food and temporary shelters. The municipalities needed to forge or strengthen the partnership with the farmers to ensure that basic services were provided to the farm community through the municipal support plans. Examples of interventions that had been made in the past included: The case of a group of waste reclaimers living on the Lyttleton farm in Centurion which exemplified the challenges experienced by the municipalities when seeking to evict farm dwellers or occupiers. The court ordered the City of Tshwane to provide alternative temporary shelter and water and sanitation facilities to 66 households on the farm, including a total of 109 units. However, the city did not comply with those directives and only provided 40 units instead of 109. The city failed to fully implement those directives and was compelled by the court to comply before evicting the farm occupiers.

Implications of court judgement

The municipalities had a constitutional obligation to focus on providing basic services and could not prioritise other services at the expense of basic services [para 52].

The obligation to provide water and sanitation for farm occupiers and labour tenants rested on the municipality, as the water services authority, not on the landowners, even in the instances where the farmer had contracted the latter to provide that service [para 62].

A municipality that was a water services authority had a duty to ensure that the landowners or other intermediaries provided access to a basic sanitation service to those living legally on their land [para 63].

Given that a landowner had a secondary obligation under sections 8 and 27 of the Constitution and the Water Services Act, 1997, s/he could not unreasonably deny the municipality access to his or her farm to install the necessary infrastructure for ensuring the provision of the services [para 63].

Concluding remarks

The judgement recognised the fact that the unlawful occupation of land was prohibited. The judgement further directed in para 63 that a municipality had a duty to ensure that the landowners or other intermediaries provided access to a basic level of sanitation service to those living legally on their land.

The judgment did not have implications for municipalities only. It also had implications for the landowners, as it also decided in para 63 that the landowners could not unreasonably deny municipalities access to their farms to install infrastructure for the provision of services.

It was a very well-reasoned judgment and had applied the law correctly, which probably explained why none of the respondents had appealed it against whom the judgment was made.

The municipalities failing to provide basic services to farm occupiers and labour tenants could soon find themselves being dragged to courts to compel them to provide those services.

See presentation for further details

Discussion

Mr Capa branded the Legal Aid SA presentation as the light at the end of the tunnel. He said in slide 25 that some problems had been listed with no solutions or maybe scattered all around the report, unlike the way they had been laid out on pages 28-30. Was there any legislation dealing with the matter that needed to be reviewed, amended, or even improved upon? Regarding burial rights, farm dwellers were a serious concern during the oversight visits. Somehow, there was a contradiction between those burial rights and the possibility of farm owners refusing to accord farmworkers those rights. Could it be established as compulsory for the farm workers to be accorded those rights by the farm owners without resorting to legal rigmarole? There were also outcries from the farmworkers in situations where a farm had been sold to a new owner. The farm dwellers had complained that the new farm owners had utterly refused to honour the previous agreements the farm dwellers had with the previous farm owners. Was there any way those agreements could be documented for continuity?

Ms Tshwete said LRMF was transferred to Legal Aid SA in 2019 which had other components such as mediation and alternative dispute resolution. Yet, Legal Aid SA stated that it took over the legal representation of the same LRMF in January 2022. What, then, happened to the other components of LRMF? Had those components remained with the DALRRD? On the issue of R33 million that was transferred, was it a once-off payment and who had transferred it? Was it transferred by DALRRD or by National Treasury? On the issue of labour tenants, those people complained that even land that had been lying fallow which they built on was being claimed by the farm owners before they originally had no intention of developing. Why could Legal Aid not expropriate that land without compensation? Those entities had to align themselves with the resolutions of the state. “We are past the first phase of willing seller willing buyer”.

On slide 22, Legal Aid SA said it had 64 satellite offices, but the Eastern Cape had reported that it had only three Legal Aid SA representatives for the entire province. Was the entity capacitated enough to deal with those issues? The same entity said it conducted training and workshops; could it explain where that took place and what type of training took place?

On COGTA, it was said that some farmers prevented the municipalities from providing basic services to farm dwellers, which was their right to receive in the first place. There had to be no negotiation about that because those farmers were violating the right of the people as South African citizens. What were the District Development Model (DDM) projects composed of? Were the projects aligned with what was being discussed in the meeting? If yes, how many had been implemented? If not, what were the strategies and plans to address it?

Mr Masipa asked about the Land Rights Management Facility transferred to Legal Aid SA. What was the budget that was attached to that entity? If that budget had been transferred to Legal Aid SA would it give the entity more capacity to do its work? The concern was that the presentation looked very good on paper but had been very different on the ground. How was the district model being applied in assisting the farm dwellers and labour tenants on the ground.

Mr Matiase spoke on the transition arrangements where Legal Aid SA took over the land rights facility. He said the entity had provided the committees with broad figures for cases, some of which were current. The entity had not told the committees, in which specific provinces those cases were more frequent. The handing over of the Land Rights Management Facility to Legal Aid was of concern. Though it could have been an operational decision, the Committees should have been informed about it so that when the Committee Members went to public hearings and did constituency work, they could directly refer the victims of land tenure and evictions directly to Legal Aid SA.

Did COGTA know about a dam in KZN called Jozini? Did COGTA know that that dam was under private ownership? Did COGTA know that villages along the N2 adjacent to that dam had no clean running water yet there was a dam alongside their settlement? COGTA only spoke highly of government's duties and responsibilities in theory. “We hardly get into gripes with the realities of people on the ground”.

The Chairperson said Legal Aid SA was very thin on the ground because of the lack of resources to properly embark on the programmes mentioned in the presentation that focused on the farming community.

On steps to deal with weaknesses as identified, one could be comfortable with the work done by the COGTA but not so much with the recommendations. On the issue of unreported evictions, one Committee Member had raised an issue where the officials from COGTA had facilitated the movement of people who had been illegally evicted by sullying them with materials so they could build on the informal settlements in various municipalities. What had been done to first stand up to the farmers for violating the rights of the farm dwellers and labour tenants?

Response from Legal Aid SA and COGTA

On water rights, Judge Makume said that it fell under national competence because nobody owned a river. Even if a river ran through your farm, a national department had a right over that river until one applied for authority in certain sections of the Water Rights Act. On the mentioned Jozini dam, Legal Aid SA did not know whether the farmers built the dam or had applied for certain rights over the dam; those issues had to be clarified by COGTA. On why Legal Aid SA was not expropriating land, the entity did not have the right to do that because it was just a functionary within the Department of Justice. The politicians had to go and amend section 25 of the Constitution, then the functionaries within the department could act. For legal rights, the job of the functionaries was just to protect the rights and submit to court about the rights of the people who were affected by the actions of other people.

Ms Kola, on the transfer of LRMF to Legal Aid SA, said it had to be put on record that a decision was taken by the Inter-Ministerial Committee in 2019, as was explained in the opening sentence in the presentation, but the actual transfer of the function happened six months ago on 1  January 2022. From the time the inter-ministerial committee on land made a recommendation, the negotiations commenced between the Department of Justice and the DALRRD. The Members would appreciate that Legal Aid SA was an entity of the Department of Justice. An inter-departmental committee set up in 2020 culminated in an MOU signed by the Minster of Justice, the DALRRD and the Department of Public Service and Administration in terms of the framework for the transfer of functions between the departments.

The process was only concluded at the end of the previous financial year which was around April/May 2022, but to honour the date of the transfer that was agreed with the Inter-Ministerial Committee. Of the inter-departmental task team, the Legal Aid SA board provided some money from its surplus account to affect the transfer in January 2022. If the Legal Aid SA’s accounting authority had not availed that funding of R35 million, that was required from the National Treasury to utilise towards taking over the function in January, the function would have only been taken over after DALRRD had availed the money on 1 April 2022, which would be three months later than what was proposed as the transfer date.

The board availed the R35 million in January 2022 to enable Legal Aid SA to take over the function as a date agreed upon by the three departments. Legal Aid SA was happy that that concluded in line with the prescripts for transferring functions. It was agreed that the baseline allocation for the current financial year would be R89.6 million. On the national footprint, the 64 satellite and 64 local offices were the existing footprint of Legal Aid SA, which was servicing criminal and civil matters. There were ten local offices in the Eastern Cape, a provincial office, and other satellite offices, making them 18 offices in all. Resources were going to be added to those offices to deal with the additional entity mandates. That would only happen when the allocation was received from National Treasury, and it was anticipated in December though recruitments had already begun. 

MMbhense added the strengths and weaknesses; he said the solutions were covered in slide 27 of the presentation. The burial issue was a thorny issue, but the entity was thinking of strategic interventions to implement. In terms of the law, new farm owners were not allowed to interfere with farm dwellers' and labourers' rights. The farm dwellers also needed to be educated about their rights, including access to legal aid. Pamphlets had been printed to be distributed amongst the farm dwellers. According to the judgements, the municipalities had a role to play, especially in providing access to basic services and emergency housing.

In response to questions posed to COGTA, Mr Mogale said that the farm owners had an obligation to ensure that the working environment was conducive for all the farm workers and the provision of water to labour tenants was one of those obligations. The judgement was more directed to the municipalities, but if the farm owners could not provide water, the duty fell on the municipalities to do so. The municipalities also had to be proactive and step in when there were human rights violations on the farms.

On the District Development Model (DDM), it was an operating model of the state and a major policy reform. The President had directed the Minister of COGTA that certain manifestations blocking service delivery had to be broken and the silos across the spheres of various departments had to be broken to have a seamless operation. That was a major policy reform and the departments had to go through the route of a pilot so that lessons could be learned. Those lessons were to be learned and consolidated as well. The DDM was all about planning together and collectively dealing with the arising matters. The catalytic projects were being tested.

The Chairperson, in conclusion, said the Committee took note and comfort from the commitments that were made. The answers to the outstanding question would have to be followed up on and submitted in writing.

The meeting was adjourned.