SOUTH AFRICAN HUMAN RIGHTS COMMISSION Stakeholders’ meeting on extension of security of tenure for farm dwellers and farmworkers Presentation at the meeting of Portfolio Committee on Rural Development and Land Reform 1 February 2017

Introduction to the SAHRC The SAHRC is mandated by Section 184 of the Constitution Act 108 of 1996 as well as the South African Human Rights Commission Act 40 of 2013. The functions of the SAHRC are: To promote respect for human rights and a culture of human rights; To promote the protection, development and attainment of human rights; and To monitor and assess the observance of human rights in the republic. The SAHRC has the power to: Investigate and report on the observance of human rights; Take steps to secure appropriate redress where human rights have been violated; carry out research; and educate.

Outline of Contents Relevant international frameworks applicable to Amendment Bill SAHRC notable complaints Previous reports of the SAHRC on security of tenure for farm dwellers and farm workers Remarks on the Amendment Bill Summary of SAHRC recommendations for the Amendment Bill

Applicable International Frameworks to protect farm dwellers The African Women’s Charter, ratified by South Africa requires the government to ensure that women have “the right to equal access to housing and to acceptable living conditions in a healthy environment.” (The Maputo Protocol ratified by South Africa in 2004) In terms of the International Covenant on Civil and Political Rights (ICCPR), the South African government is obliged to protect families, whose dignity is affected by evictions of farm dwellers. (Art 23 of the ICCPR)

Applicable International Frameworks to protect farm dwellers The African Charter for Human and Peoples’ Rights (ACHPR) also recognizes the protection of the family unit. (Art 18 of the Maputo Protocol) In terms of the International Covenant on Economic, Social and Cultural Rights (ICESCR) ratified by South Africa, the treaty’s monitoring body has recommended that “evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights.” (CESCR General Comment No 7) The Committee also recommends that adequate housing should include a degree of legal security of tenure, availability of services including safe drinking water and sanitation facilities among others. (CESCR General Comment no 4)

SAHRC Notable Complaints Residents of Athurstone Village v Amashagana Tribal Authority & 2 Others (Mpumalanga) Judgment was handed down on 8 June 2016 by the Pretoria High Court where the Court found in favour of approximately 150 residents who were evicted from a piece of communal land known as the Arthurstone Farm in Bushbuckridge, Mpumalanga Province. The High Court declared the eviction and demolition of the homes unlawful. It also ordered the Amashangana Tribal Authority to construct temporary habitable dwellings equivalent to those destroyed on a piece of land in the vicinity of the Arthurstone Farm pending the construction of permanent habitable dwellings at a site agreed to between the parties. The High Court authorised the Commission to monitor compliance and to approach the Court in the event of non-compliance with the court order. Amashangana Tribal Authority’s filed a notice of intention to appeal the decision of the high court which has delayed the implementation of the court order.

Notable Complaints Frank Sout & 4 Others v Mangaung Metropolitan Municipality (BHC 1424/2016) On 2 June 2016 the Mangaung Local Municipality secured an order of court evicting occupants of Farm Rodenbeck 2972, Bloemspruit, Bloemfontein. In terms of the eviction order, the occupiers were given until 12h00 on 30 June 2016 to vacate the land they occupy on Farm 2972 Rodenbeck, Bloemfontein. The occupiers only became aware of the eviction order on 9 June 2016 when they attended the offices of Legal Aid South Africa (LASA), whom they believed were their attorneys of record at the time. This matter is still pending before the Bloemfontein High Court.

Report on the Inquiry into human rights violations in farming communities (2003) In 2003 the SAHRC undertook an Inquiry into human rights violations in farming communities. The inquiry arose as a result of the Commission’s detailed research and information gathered over a two year period commencing in 2001 where special focus was drawn to issues relating to access to land, labour relations, safety and security challenges, and the realisation of economic and social rights. This was based on complaints received by the Commission concerning forced evictions, lack of social services, lack of access to education and health care, lack of social security grants, and the safety and security of people working on and owning farms. The 2003 report thus aimed at reflecting on the broad trends and the underlying causes of human rights abuses that occur within farming communities.

2003 Report report’s main findings Widespread non-compliance with ESTA due to: A lack of knowledge of ESTA by all role-players; ESTA being regarded as contested legislation; and A lack of acknowledgment and support for the human rights that ESTA sought to protect and realise. Lack of knowledge about the provisions of ESTA concerning burial rights. Perception that burial rights would create challenges around land ownership rights. Evictions that occurred as a result of change in land ownership.

Applicable Recommendations of the 2003 Report To this extent the 2003 Report made the following recommendations: Training for all role-players – farm owners, farm dwellers, magistrates, prosecutors and members of the South African Police Service (SAPS); Extending the services of Legal Aid South Africa (Legal Aid SA) to rural areas to provide legal representation to farm dwellers who are facing eviction; Development of an adjudication system of dealing with land disputes administered by the then Department of Land Affairs (current Department of Rural Development and Land Reform) in partnership with the Department of Justice and Constitutional Development; and Giving consideration to amending ESTA to ensure that no eviction proceedings are initiated in court unless the matter has first gone through a mediation process.

The Inquiry into the Progress made in terms of land tenure, security, safety and labour relations in farming communities since is reports of 2003 (2008) A second investigative hearing was convened by the Commission to analyse whether there was any progress made since the publication of the 2003 Report. The applicable main findings of the 2008 inquiry were: Government had not relied on Section 4 of ESTA to enable farm workers to secure land and tenure security; The social development needs of farm dwellers and evicted persons remained largely invisible within municipal Integrated Development Plans (IDPs); Farm dwellers access to legal representation remained largely inadequate; Data collection and reporting of data on legal and illegal evictions by the then Department of Land Affairs remained inadequate; and The SAPS remained largely uninformed about the legal requirements of ESTA and the applicable offences.

2008 Follow up Report’s main recommendations The 2008 Report made the following recommendations: The then Department of Land Affairs should enter into an urgent dialogue with its social partners to review, clarify and reform its policy on tenure security for farm workers and occupiers; The then Department of Land Affairs should ensure that all notices to terminate rights of occupation in terms of section 9(2)(d) of ESTA are properly recorded and collated by district and province and quarterly reports set out on the Department’s website together with an analysis of trends; and The Department of Provincial and Local Government was enjoined to put in place a mechanism in regulations requiring municipalities to address the provision of emergency shelter and services to people displaced were evicted from farms.

The National Investigative Hearing into the Safety and Security Challenges in Farming Communities (2014) In 2014, the Commission hosted a hearing for the third time to investigate human rights violations in farming communities. Although the previous two hearings were broader in nature, a third hearing was needed due to the ongoing safety and security challenges facing farming communities. The hearing focused on: Considering the extent of the implementation of the Commission’s recommendations in the previous two farm hearings; Accumulating relevant statistics showing the incidence of violent crimes in farming communities; Recommending further actions that the State, and other role players, should implement to reduce crime which affects farming communities. The report highlighted some challenges regarding security of tenure for farm dwellers, such as the limited access of government services and adequate housing in farming communities and the vulnerability and interdependency of the farming community.

Recommendations from 2014 Investigative Hearing into the safety and security The recommendations from the 2014 report indicated that: The Department of Rural Development and Land Reform should establish the standard of housing, in the form of a policy document; The Department of Justice and Constitutional Development needs to focus on farming communities, and how justice is achieved; and The South African Judicial Education Institute needs to provide sufficient detail as to how the court processes work, the improvement of the judicial system, and in particular how to address impunity in farming communities.

Remarks on the Amendment Bill The provision of legal representation for occupiers by Extension of Security of Tenure Amendment Bill is welcomed as it gives effect to the ruling in Nkuzi Development Association v The Government of the Republic of South Africa and the Legal Aid Board (LCC 10/01) [2001] ZA LCC 31 In the Nkuzi Development Association case, it was held that persons who have a right to security of tenure in terms of the ESTA and the Land Reform Act (LRA), and whose security of tenure is threatened or has been infringed, have a right to legal representation or legal aid at State expense if substantial injustice would otherwise result, and if they cannot reasonably afford the costs. More recently, the Constitutional Court has also ruled that people seeking to challenge an eviction order can approach the Supreme Court of Appeal instead of the Land Claims Court bringing procedural clarity on farm workers evictions: Snyders and Others v De Jager & Others [2016] ZACC 55

Remarks on the Amendment Bill The Commission notes that the establishment of alternative resolution mechanisms (i.e. mediation and arbitration) in the Extension of Security of Tenure Amendment Bill will be in line with the Commission’s recommendations of 2003 when it recommended the development of an adjudication system of dealing with land disputes to ensure that no eviction proceedings are initiated in court unless the matter has been through a mediation process.

Remarks on the Amendment Bill The task of the Land Rights Management Board to set up and maintain a database of occupiers, land rights disputes and evictions, will improve data collection and reporting of data on legal and illegal evictions and assist with identifying the trends analysis in the sector The broadening of tenure security through the expanded definition of family is to be welcomed. However, it is regrettable that the Bill does not offer additional protection to women and children who are often dependent on men for their occupier status.

Summary of SAHRC recommendations for proposed incorporation into the Bill Prescribed training for all affected role-players including farm owners, farm dwellers, judicial officers, prosecutors, the SAPS and the Land Rights Management Committee; The Department of Justice working with the Legal Aid Board and the Judicial Education Institute should be given mandates on protecting the right of access to justice other administrative rights of evicted farm dwellers. A monitoring mechanism should be developed to ensure records management to determine trends in relation to the termination of rights occupation in terms of s 9 (2) of ESTA to provide appropriate redress. Statutory provision should be made for temporary emergency shelter and services to people displaced from farms.

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