AGRI SA’s PRESENTATION TO THE PORTFOLIO COMMITTEE ON AGRICULTURE AND LAND AFFAIRS ON FARM EVICTIONS:
The issue of farm evictions is a very sensitive, emotionally charged and complex issue. It has been so from the beginning. Back in 1995 – 1996 when the Labour Tenants Act and the Extension of Security of Tenure Act (ESTA) were being legislated, it was a controversial and emotive subject and it still is. The programme of tenure reform is arguably the most difficult of the three government programmes to implement and definitely the most controversial. This is also illustrated to some extent by the controversy surrounding the Communal Land Rights Act. Agri SA believes that this is the case, because the tenure reform programme attempts to balance competing rights on the same land.
As with many other things, part of the problem is that there is no reliable statistics on evictions. Ever since 1995, groups such as Nkuzi-Development and AFRA have claimed that there are thousands of people being evicted and Agri SA has denied that people were being evicted in such vast numbers. Quite clearly, different people and organisations attach different definitions to the term ‘evictions’ that contribute towards differences and even controversy. More recently Agri SA has declared a dispute with the Ministry of Agriculture and Land Affairs regarding repeated public statements of large-scale illegal evictions from farms.
Evictions are regulated by a number
of laws, namely ESTA, the Prevention of Illegal Eviction and the Unlawful
Occupation of Land Act (PIE) and the Labour Tenants Act (LTA). The focus in this presentation will be
predominantly on evictions in terms of
ESTA, but it should be noted that Agri SA has serious concerns regarding PIE
and the proposed amendments to PIE. In
our view PIE gives very little protection to landowners against large-scale
land invasions such as experienced with the Modderklip invasion. The
2. THE CURRENT LAW AND RECOMMENDATIONS OF
From Agri SA’s perspective, there is a law dealing with farm evictions, namely ESTA. This law makes it illegal to evict an occupier against his or her will without a court order. Moreover the court has to consider various factors in deciding whether or not to grant eviction orders. These orders are not easily granted. The courts also have the power to reinstate occupiers who have been illegally evicted. Also, all eviction orders go on automatic review to the Land Claims Court. This means that there is a safety mechanism built into the system. Agri SA acknowledges that the law may not always have been implemented as effectively as it should have been, but the fact remains that there is a law that can effectively regulate evictions.
Therefore, the calls for a moratorium on evictions by certain groups do not make sense. If there are shortfalls in the Act, the necessary amendments can be effected by Parliament. If implementation is lacking, that should be beefed up. The argument that farmers will evict on a large scale pending legislative amendments has also proven to be false.
There has been talk of amendments to ESTA at least since 2004. It is, however, not such an easy thing to do, as the current law represents a fragile balance between the rights of occupiers and owners. The Department of Land Affairs (DLA) is thus is a difficult position, as some of the amendments called for by the Land Summit of 2005 will either be unconstitutional or impractical. Any permanent rights granted to occupiers, such as creating a class of “non-evictable” occupiers, will amount to “de facto” expropriation of land and landowners will have to be compensated for this. Section 25 of the Constitution gives protection to property rights. Granting independent rights to the spouses and children of farm workers will make a mockery of a landowner’s right to evict under certain circumstances as well as of any contractual agreements entered into regarding the right of a farm worker to reside on a farm whilst being employed on that farm.
The issue of a moratorium on evictions needs to be argued, because there are continuous calls for this.
· First of all, it is Agri SA’s view that the present law (ESTA) is in fact a moratorium on illegal evictions. Any landowner, who evicts without a court having considered all relevant factors and having granted an order of eviction, commits a criminal offence. If despite this, there are still landowners who evict illegally, it is not clear to us how a moratorium will prevent these same landowners from evicting.
· Secondly, Agri SA is of the view that a moratorium on legal evictions will be unconstitutional, as this will amount to expropriation without compensation. The argument that this will be a temporary measure while legislation is being amended does not make sense, as amendments have supposedly been underway since 2004.
· Thirdly, a moratorium on legal evictions will in some cases lead to conflict, not only between landowners and occupiers, but also between occupiers. Landowners are sometimes requested by occupiers to act against another occupier who is acting violently or who is in some way a threat to the community of occupiers on a farm. It needs to be recognised that there are situations where the relationships between landowners and occupiers/ex-employees have completely broken down and it is impractical to require people to live together on the same farm once that has happened. In fact it is a recipe for conflict to do so.
For these reasons, evictions should always be possible and the requirements for legal evictions should not be so strict or the process so cumbersome and expensive that it makes it impossible to evict people from a farm.
3. PROBLEMS WITH ESTA
Agri SA does not want to give the impression that ESTA is without shortcomings. It definitely has a number of foreseeable as well as unintended negative consequences.
· The eviction process is drawn out and expensive.
· Unemployed, adult children of occupiers who live on farms or move back to live with their parents often cause problems on farms. In such cases or when unemployed families stay on farms, the misuse of alcohol and drugs are more prevalent which often leads to criminal and violent behaviour.
· Farm attacks and theft remain a huge problem and uncontrolled access of visitors to unemployed farm dwellers is a security concern to many farmers.
· There are often conflicts over livestock numbers and grazing rights. In some cases the number of livestock kept by occupiers far exceed the agreed numbers leading to over grazing. This problem is compounded by unsatisfactory practises with disease control.
· ESTA has had a negative impact on farm values. Farms with large numbers of occupiers living on them are worth far less than farms with few or no occupiers living there.
Farmers have a limited number of houses for workers and
need these houses for people who are actually working on the farm. Due to ESTA, houses are nowadays often
occupied by people who no longer work on
the farm, leaving no room for new employees.
New black farmers, especially in
· ESTA rights are very easily acquired: a person who resides on a farm one day with permission, qualifies as an occupier.
· There is a strong feeling amongst farmers that this law discriminates against rural landowners and may as such be unconstitutional.
Even so, Agri SA strongly feels that laws are there for a reason and have to be complied with by all. The organisation has always encouraged and trained its members to comply with the provisions of ESTA and has a strong stance against illegal evictions.
. There is a lot of misinformation regarding ESTA rights floating around and more should have been done to inform people (landowners and occupiers) about their rights and responsibilities in terms of this law. Court cases are very expensive and this needs to be addressed. Mediation can play a huge role in resolving disputes and this has until recently been sadly lacking. The merits of a CCMA-type process for evictions should be investigated.
4. EVICTION STATISTICS
Agri SA does not agree with the findings of the Nkuzi-report, that thousands of people have been evicted over the last 20 odd years, of which is claimed that the vast majority of these having been illegal evictions. The report claims that only 1% of all these involved a legal process. This simply cannot be correct. It should be borne in mind that the concepts of legal and illegal evictions only came into existence in 1997 with the enactment of ESTA. The report deals with historic facts and goes back to the 1980’s. We should rather deal with recent facts. Agri SA has long been advocating independent, reliable research on this subject. .
Agri SA nevertheless does acknowledge that there has been a big movement of people from rural to urban areas for a variety of reasons. It is true that the number of permanent farm employees today, is significantly lower than the case was twenty years ago, but there are many reasons for this, and we would argue that for the most part, people moved from farms in search of a better income and more opportunities in towns and cities. Also farming has become much more competitive over the last two decades, and the number of farmers today are also significantly lower than what the case was twenty years ago. According to Statistics SA’s agricultural survey of 2002, the number of farming units has decreased from 57980 in 1993 to 45818 in 2002.
Agri SA has been
offering to assist in eviction disputes in which its members are involved, but
no information has been forthcoming. It
was only very recently that the Minister of Agriculture and Land Affairs, in
reply to a formal question put to her in Parliament, released information on
so-called cases of illegal evictions.
The questions and the Minister’s answer are attached hereto. If one
studies the cases carefully, it became clear that these are mostly ESTA-related
disputes, (over livestock, water and electricity) not cases where people were
thrown on the street without a court order for their eviction. What is also clear from these case studies is
how effective mediation by DLA has been in many of these cases. In many of the cited cases, all that the
landowner has done, is given a first notice of intention to evict, as is
required by the Act. This does not
constitute an illegal eviction.
Interesting to note also is that there are no reported cases from
5. AGRI SA’S STANCE ON FARMWORKER HOUSING
Agri SA is in favour of the establishment of local forums in all districts consisting of representatives from local stakeholders finding local solutions for local problems, also as far as evictions are concerned. These forums can assist with mediation, the dissemination of information, and the identification of alternative land and housing where the need arises to do so.
Ultimately the solution, we believe, lies in off-farm solutions and the provision of adequate housing in rural areas. Housing and land reform remains a government responsibility, not the responsibility of individual private landowners.
Housing on a farm (even good quality housing) has very little if any capital value for a farm worker when the service relationship with the farm owner comes to an end. A different approach is therefore required to assist farm workers to accumulate assets/collateral by means of off-farm home ownership. This should not be pursued by means of giving people competing rights on the same piece of land, which often leads to conflict to detriment of both parties. Moreover, services such as access to electricity, hospitals and clinics, schools, shops and sport facilities seldom exist on farms and municipalities find it very difficult to provide these services to farms. There are usually also limited alternative employment opportunities in a farming environment, which makes it unattractive to stay on as an unemployed person.
“Agri SA is of the opinion that the following principles should inform any future policy on farm worker housing and tenure:
· Farms are, in the first place, production units and not residential units.There is a strong link between economic activity and the occupation of on-farm housing, even in so far as a land owner is concerned. . Thus there is a strong link between economic activity and the occupation of on-farm housing, even insofar as the landowner is concerned.
· Housing on a farm should be of good quality – minimum standards should apply in this regard. Such minimum standards should be similar to those of the government in respect of RDP houses.
· Housing for the poor remains, in the first place, the responsibility of the state and the cost thereof should be borne by the state – not by private individuals or a specific sector.
· The policy should promote real empowerment.
· People can be empowered by giving them property rights to a house of their own away from the farm.
· There must be economic opportunities for these people, or where they do not exist, opportunities should be created so that such people are not solely dependent on agriculture.
· Rural development should be a priority. Additional economic activities and opportunities should be created in rural areas. Biofuel plants and railway workshops in rural areas could, for example, contribute much towards creating opportunities.
.The aim should be to absorb these people, especially the youth, into the mainstream of the first economy.
· For this purpose, quality educational facilities are needed.
· The necessary infrastructure must be in place in terms of transport, health services, sanitation, schools and recreation.
· People should as far as possible be accommodated within their familiar environment. The culture of the relevant occupiers and the region should also be taken into account when planning and implementing any options for that region.
· . Farm workers who wish to farm should receive preferential treatment in terms of LRAD funding because they already have certain farming skills. There should be an additional state grant for farm workers who decide to become part of the LRAD programme. Such farm workers should be properly selected and trained.
· The policy should be compatible with the principles contained in the Strategic Plan for the South African Agriculture. Existing policy, legislation and programmes such as ASGISA should also be taken into account when formulating such a policy.”
Before formulating more concrete proposals Agri SA wish to reiterate and allude to the following aspects:
· Farm workers are an integral part of the production system on farms and should from an economic but also from a social perspective receive proper treatment
· As in any other business a personnel turnover is a normal and sometimes necessary occurrence and it should not be elevated as a inhumane event in the agricultural sector
· On-farm housing can realistically only be attached to workers being an active part of the production system otherwise it (provision of housing) becomes a repetitive process showing elements of a welfare approach which can hardly be expected from farmers per se.
· Farmers are expected to abide by the law but mechanisms to expedite and simplify labour related matters (like a CCMA type of structure) to deal with matters like evictions are of paramount importance.
Against this background Agri SA wishes to propose as follows:
· Property of farmers should be dealt with in terms of the Constitution and in accordance with the Bill of Human Rights
· Farmers should remain able and willing to accommodate workers on-farm without fear of prosecution or disguised expropriation via draconian application of existing legislation or being essentially confronted with permanent residency of farm workers. As was recently indicated in the budget speech, incentives in this regard available to farmers should inter alia be reviewed i.e. depreciation allowances and related monetary thresholds as well as fringe benefit taxation.
· A dispensation with respect to off-farm housing needs to be devised as a first choice of property ownership to farm dwellers and farm workers. Joint initiatives between farmers and government can be developed e.g. state guarantees with respect to mortgage bonds as well as on loans provided by farmers as well as interest rate subsidies comparable to RDP housing or a similar dispensation.
· Movement from on-farm to off-farm housing should qualify for a similar situation as above, provided that the employee remains with the particular employer. If employment is terminated for whatever reason an agreed to severance package for agriculture needs to be devised, also to deal with the need for alternative housing, if applicable.
· The allocation of 5 million ha of agricultural land in terms of the declared presidential priorities should be factored into the process. Agri SA fully supports the empowerment of farm workers through this initiative. This is in line with our stated view regarding of off-farm solutions. A farm worker that is a beneficiary of this scheme should, however, not have any further entitlement in terms of ESTA.
· Local forums should be the vehicles par excellence to oversee the implementation of these particular matters. Involvement of all stakeholders is an obvious prerequisite in this respect.
7. SUMMARY AND CONCLUSION
Agri SA recognises that the Constitution provides for tenure security for those whose tenure is insecure and is on record for condemning illegal evictions. Agri SA is also in favour of decent housing for farm workers.
Agri SA submitted input into the process that led to the adoption by Parliament of the Extension of Security of Tenure Act in 1997. Agri SA had ever since certain reservations regarding aspects of ESTA: The concept of giving people competing rights on the same land is problematic and has an inherent potential for conflict. For this reason Agri SA is in favour of the off-farm option, where farm dwellers should be empowered to secure property rights to a house of their own in a town or a farm village. Agri SA proposed as far back as 1996 that sustainable settlements with farming opportunities should be created close to existing towns and cities where infrastructure already exist. Moreover, farm workers are prime candidates for some of the government programmes, particularly LRAD as they already have farming skills and can become farmers in their own right.
It is critical that where settlements for farm dwellers are created, whether these are on or off farm, the necessary infrastructure needs to be provided by government and the necessary services should be provided. This remains the duty of government, particularly local government, to provide the required infrastructure and services and cannot be devolved to private landowners. However, Agri SA is concerned whether the necessary capacity does exist within local government to do this, particularly in view of plans to redistribute some 5 million hectares of land to farm dwellers, as recently announced by the Department of Land Affairs.
Farm workers and their families who move off farms, should be given priority in terms of LRAD funding or housing in rural towns. Local authorities should pro-actively identify and make land available to farm dwellers that move off farms. The new approach of the Department of Land Affairs of ‘area based planning’ creates an opportunity for local stakeholders to do such planning.
It needs to be recognised that the primary role of producers is to produce food and fibre for the nation in a competitive global environment. Farmers should be assisted to do so, in order for all of us to be able to buy good quality food at affordable prices. Although farmers also have a role to play in creating a better life for all in rural areas and have a social responsibility to those who are employed by them, they cannot bear this burden alone. In reality many farmers simply cannot afford to take on a big social responsibility, such as providing housing, grazing land, water and electricity free of charge to people who are not economic active in the sector and cannot afford to pay for these services themselves. Farmers are however willing to work with government in finding lasting and sustainable solutions to this very real, human and social challenge.