Portfolio Committee on SALGA’s perspectives on the Extension of Security of Tenure Amendment Bill and the Act Portfolio Committee on Rural Development and Land Reform 16 November 2016

Contents SALGA’s perspectives of the Extension of Security of Tenure Act, 1996 and the Extension of Security of Tenure Amendment Bill The challenges of evictions and impacts on municipalities The role that the municipalities can play to support farm dwellers and victims of evictions Implications for policies at municipal level

Proposed Amendments to the Act New and amended definitions SALGA supports these changes Tenure grants There is clearly no direct obligation on municipality, in terms of factors considered or to apply for a grant Main criteria used by Minister in considering application is whether development “entails a mutual accommodation of the interests of occupiers and owners” Provision is made that the DRDLR Minister may provide tenure grants Through an agreement with a prov govt or a municipality or a person or body For development or to provide alternative accommodation Paid to the prov govt or municipality or such person or body to enable it to facilitate, implement or undertake or contract with a third party SALGA Concern: In as much as the Act requires the land owner and the Department to provide alternative accommodation in the event of an eviction, courts increasingly requires municipalities to address them on how they will ensure that alternative accommodation is provided for evictees – courts deem municipalities to be probation officers without municipalities carrying this responsibility in terms of the Act or being duly appointed as such by the Minister ESTA not placing any responsibility on municipalities to provide alternative accommodation

Proposed Amendments to the Act SALGA supports the amendments w.r.t. Tenure grants Additional rights to occupiers The right to To maintain the dwelling occupied To erect a tombstone, mark or symbol or perform rites on family graves SALGA supports this amendment Limitation on evictions Legal representation, mediation and orders w.r.t reasonable weather conditions under which order may be carried out SALGA supports these amendments

Proposed Amendments to the Act Establishment of Land Rights Management Board Facilitates provision of municipal services in consultation with municipality concerned SALGA view: It is imperative that the Board closely liaises with municipalities and also ensure that the Board make submissions to each relevant municipality in the IDP and budgeting process to ensure that municipalities plan for the provision of services, where required, and that where services are required, the tenure grants also cover the delivery of services and that same are secured, before the finalisation of the IDP and budget that provides for the provision of such municipal services It is thus recommended that there the tenure grant should include the provision of services and that same be secured before it is included in the budget and IDP of the municipality SALGA supports the establishment of the Land Rights Management Board

Proposed Amendments to the Act Establishment of Land Rights Management Committees SALGA view: The same principles as raised w.r.t. the provisions of services under the Land Management Board should apply to the Management Committee with regard to the identification of land for settlement. Consultation and engagement with the relevant municipality is required to ensure that the IDP, and in particular the SDF, supports the use of the land as identified by the Committee for settlement. The provision of services must be addressed when land is identified for settlement. The servicing of land identified for settlement must form an integral part of the identification process, and it cannot be the sole responsibility of the municipality to fund such services. As stated before, the grant should include at least a substantial contribution to the provision of bulk services to areas so identified and needs to be included in the IDP and budget. SALGA supports the establishment of Land Rights Management Committees

Challenges of evictions and impacts on municipalities Scope of ESTA, 1997 v PIE, 1998 ESTA applies to all land other than land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law, or encircled by such a township or townships, but including: Any land within such a township which has been designated for agricultural purposes in terms of any law; and Any land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment, approval, proclamation or recognition. Other evictions to be done i.t.o. PIE Currently uncertainty w.r.t. the application of ESTA in urban areas where land are zoned “Agriculture” - is it included in “under any law”? Serious concerns with recent court ruling conflating ESTA and PIE without expressing which act is applicable (Odvest v. Occupiers of Klein Akker farm)

Challenges of evictions and impacts on municipalities Scope of ESTA, 1997 v PIE, 1998 (Cont.) Conflation resulted in the municipality being required to provide alternative accommodation where ESTA was argued to be applicable This has serious implications for both the planning process of municipalities as well as the financial implications As indicated before, there has been a number of instances where the Magistrates Court, out of own accord, “joined” the municipality in ESTA applications and, without expressly referring to it as a probation officer, required the municipality to not only address them on alternative accommodation, but also ordered municipalities to provide alternative accommodation in ESTA evictions, ignoring the provisions of ESTA. The findings of the High Court in Odvest v. Occupiers of Klein Akker farm will further entrench this misinterpretation of the Act. SALGA has liaised with various Departments in this regard in order to address this aspect, but the matter has not yet been resolved.

Challenges of evictions and impacts on municipalities In a recent engagement with the Board of Sheriffs, they expressed the view that municipalities should be responsible to ensure the removal of the possessions of individuals evicted from premises, as the Sherriff, according to them, are ordered by the court to hand over possession of the property post an eviction, but that neither the Sherriff nor the applicant for the eviction has an obligation to safeguard the property of the evictee. There is no basis for requiring the municipality to take responsibility in this regard. It is the SALGA view that similar to the land owner, the evictee also has the right to safeguard his/her possessions. Consideration to the process of eviction needs to be given in either the Act or subsequent regulations - in the latter instance both Acts need to provide for such regulations to be issued. Land owners need to take bigger responsibility w.r.t evictions

Role that the municipalities can play to support farm dwellers and victims of evictions Collection of information to anticipate evictions and enable quantification of needs Engagement with communities Partnership with DRDLR and provincial departments to undertake developments and provide alternate accommodation, funded via Tenure Grants from the Department Facilitate land availability Can assist in co-ordination of all role players when an eviction is anticipated – would require close engagements with Land Management Committees once established Implementation of SPLUMA can assist with municipalities earmarking land for this purpose. This however does not address the aspect of land acquisition and engagement with owners of land so identified. (As per ESTA, this responsibility still rests with the Minister RDLR.) Engagement with land owners on land so identified needs to be a collaborative effort and the municipality can assist in coordinating such engagements

Implications for policies at municipal level Development of beneficiary selection policies at municipal level, in line with draft national policy Based on current jurisprudence, courts do not discriminate between ESTA and PIE evictions, however, different role players are involved - based on the Blue Moonlight matter, municipalities might be found wanting if there is discrimination in addressing the plight of PIE evictees vis-a-vis that of ESTA evictees – yet legislation differs There is a need to as far as possible create synergy between the Emergency Housing Policy of the Department of Human Settlements and the policy of the DRDLR on alternative accommodation as the implementation will play out on local level Municipalities must plan for alternate accommodation and evictions in Municipal Housing Sector Plan, but dependant on national and provincial departments for finances, which renders municipalities vulnerable

Implications for policies at municipal level Areas earmarked for and used for alternative accommodation need to be addressed in the rates policy of municipalities – no such allowable category for exemption provided for in the Local Government: Municipal Property Rates Act – engagement with COGTA required to address this and possibly specifically provided for in that Act These amendments to ESTA must be considered in simultaneous to anticipated proposed amendments to PIE so that there is a coherent and equitable legislative framework for all evictions

Thank you