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NATIONAL

CHAPTER 1

Introduction

Introduction The nature of the complaints ranges from


evictions, lack of social services, lack of ac-
South Africa, it is said, has one of the most
cess to education, health care, social secu-
progressive constitutions in the world. It is
rity grants and the safety and security of
also regarded as having a Bill of Rights that is
people working on and owning the farms.
considered to be one of the most advanced.
However, the test of the Bill of Rights cannot
be in how strongly the document is worded, “The Inquiry seeks to try and understand
but in how it works for the people for whom and unpack the human rights challenges
it is intended. In the short life span of the that face us in our rural communities.”1
South African Human Rights Commission Jody Kollapen
(SAHRC), it has dealt with critical issues such
as racism in the media, prison conditions and
the treatment of migrants and those who are While the Commission is committed to deal-
regarded as illegal in the country. The man- ing with individual complaints that are re-
date of the Commission is a wide and com- ceived and will continue to do so, the role of
prehensive one. One aspect that has always a national institution such as the SAHRC is
been of concern to the Commission is the also to provide a basis for understanding the
ability of the Constitution and the Bill of systemic problems that exist in farming com-
Rights to provide real and meaningful pro- munities. The SAHRC therefore decided to
tection to those who are the most vulner- conduct a National Inquiry into Human Rights
able in our society. Violations in Farming Communities. The In-
quiry was launched on 11 June 2001 by the
Very often, those who live within rural and then Chairperson of the SAHRC, Dr. N.
farming communities are vulnerable. There Barney Pityana.
is a sense that the Constitution and the Bill
of Rights have yet to impact on the day-to-
day lives of people living in these communi-
ties. Over the years, the SAHRC has received
numerous complaints from people living and
working on farms, as well as from those who
own farms.
1
“We launch this project today as part of These include the power to conduct an
our continuous effort to ensure that all investigation into any alleged violation
human rights are enjoyed by all, irrespec- of human rights, to call any person to
tive of who they are, where they are, what appear before it and produce to it all
they do and where they come from. It is articles or documents in his or her pos-
our expectation that with the collabora- session or under his or her control and
tion of all stakeholders, at the conclusion which may be necessary in connection
of the project, the phrase ‘human rights with such investigation, and to ask any
in farming communities’ would mean person who appears before it to give
something to all parties, reflected not only evidence under oath or affirmation.
in their conversation, but in their action
and way of life.”2 Barney Pityana.
Purpose of Inquiry
The purpose of the Inquiry is not to find any-
body culpable in a sense of guilt or innocence,
The Mandate, Powers, and Func-
tions of the South African Human
but rather to try to understand how human
Rights Commission rights have been advanced, if they have been
The South African Human Rights advanced, and what the obstacles are to such
Commission (SAHRC) is one of the human rights being advanced. The Inquiry
independent constitutional bodies also sought to determine whether the ob-
supporting democracy established in
terms of chapter 9 of the Constitu-
stacles that lie in the face of realisation are of
tion of the Republic of South Africa.3 policy, or in the area of enforcement. As a
It derives its mandate from the Con- national institution supporting democracy, the
stitution and from the Human Rights SAHRC aims to contribute to alleviating the
Commission Act. 4 The SAHRC is situation.
mandated by section 184 of the Con-
stitution to:

q Promote respect for human The Inquiry seeks to


rights and a culture of human q Determine the extent of human rights
rights; violations in farming communities
q Promote the protection, q Publicise conditions on farms
development and attainment of q Raise awareness
human rights; and q Improve the living conditions of farm-
q Monitor and assess the ing communities
observance of human rights in q Improve respect for human rights in
South Africa. farming communities.

In order to fulfil its mandate, the


SAHRC is empowered by section The Inquiry is not a performance evaluation,
184(2) of the Constitution:
it is not seeking to embarrass, but rather to
q To investigate and to report on explore how we can ensure that the law
the observance of human rights; works for people living in farming communi-
q To take steps to secure ties. The Inquiry sought to create a platform
appropriate redress where for the different role-players to understand
human rights have been violated;
q To carry out research; and
each other. The purpose of the Inquiry is to
q To educate. address those people who feel that the Con-
stitution is yet to reach them.
The Human Rights Commission Act
confers further powers, duties and func- This Inquiry attempted to describe the living
tions on the SAHRC.
conditions of farm dwellers and how they
perceive the reality in which they live. It also

2
focused on the relationships that exist on On the second day, there were further dis-
farms, between farm owners and farm dwell- ruptions after the panellists initially refused
ers, and how they interact with government to succumb to demands to halt proceedings
officials. In attempting to describe these re- due to the alleged dismissal of workers who
alities, farmers perceive themselves as being had attended the hearings the day before. The
victimised. These realities need to be ac- situation was peacefully diffused with the
cepted in order to change perceptions. Con- crowd being assured that a SAHRC Commis-
ditions will not improve unless they are made sioner would visit the farm immediately to
transparent and all relevant role-players col- investigate and to try and resolve the issue.
laborate to determine the programmes and This was duly done.
resources that are available in order to ad-
dress these problems. Whilst the SAHRC acknowledges the intense
feelings of frustration and anger of farm dwell-
The Inquiry decided that individual names of ers over the slow pace of land reform, it con-
alleged perpetrators would not be mentioned demns the disruption of the hearings. Rather
at the hearings as the Inquiry sought to iden- than the Inquiry providing a forum in which
tify broad trends and the underlying causes the human rights of farm dwellers could be
of human rights violations at various levels in addressed as part of a national process, the
farming communities. Should the Inquiry have disruption removed this opportunity. As a
proceeded to publicise the names of alleged result, important information may not have
perpetrators, then these people would have been placed before the Inquiry in this prov-
had the right of responding to the allegations. ince.
This would have lengthened the proceedings
substantially. In all likelihood, little informa- The Inquiry and the Final Report presents the
tion would have been obtained and a great beginning of a new process, one in which
many resources and much time would have relevant role-players can reflect on how they
had to be allocated to the process. interact with other role-players to achieve
the realisation of human rights for all who
There were people who felt threatened by live in our farming communities. The Report
the Inquiry, angered by the manner in which strives to create a reflection of what the
the Commission decided to conduct the In- panellists heard from people living in farming
quiry, or viewed the Inquiry as an opportu- communities across the country. This is their
nity to express their feelings. reality, which all role-players need to accept
in order to meaningfully participate in sup-
In the Free State Province proceedings were porting and entrenching human rights.
delayed due to a bomb scare in the venue
where the hearings were to be conducted.
After a thorough search by the SAPS, no Terms of Reference for the Inquiry
bomb was located and the hearings pro- The Terms of Reference for the Inquiry
are set out in the Government Gazette5
ceeded. Clearly there were those members as follows:
of the farming community who did not want 1. To investigate the incidence of
the proceedings to take place. human rights violations within the
farming communities from 1 June
In KwaZulu-Natal, both days of the hearings 1998.
2. The Inquiry will, amongst others,
were disrupted. On the first day one of the look at the following sectors:
organisations that had been invited to present 2.1 Land rights and tenancy;
evidence at the Inquiry walked out after ex- 2.2 Safety and security
pressing dissatisfaction that they were not 2.3 Economic and social rights.
allowed to state the names of alleged perpe-
trators. A disruption and toyi-toying followed Continued on page 4
3
the walk-out.
the hearings and in some cases, the Depart-
3. The SAHRC reserves the right to ments of Education, Health and Housing also
extend the Inquiry to other sectors,
which in its view warrant investi-
participated.
gation.
4. The Inquiry will strive to establish,
as far as it is possible: Methodology and Rules of Process
4.1 The underlying causes of q The Rules and Procedures for the in-
violations of human rights in vestigation and Inquiry are those set
farming communities. out in section 9(6) of the Human
4.2 To make findings and Rights Commission Act 54/96.6
recommendations. q In terms of these rules of procedure
the SAHRC called for submissions on
any matter referred to in the terms
of reference from interested parties,
The three phases of the Inquiry including institutions, organisations
First phase - research and associations, government parties
The first phase included commissioning re- and individuals.
search by independent persons in each of the q The Submissions deadline was 16 De-

provinces. The research reflected the issues cember 2001.7


q The SAHRC commissioned research
of land and tenancy rights, safety and secu- to assist in providing information or
rity and economic and social rights. The re- data, social analysis or methodology
search methodology looked at the kinds of for the investigations.8
patterns that existed within the various prov- q The SAHRC then invited individuals,

inces, what structures existed and which institutions, organisations, and gov-
ernment departments to attend the
ones were effective. hearings and make oral submissions.9
q Public Hearings were conducted
Second phase - participation which were presided over by a panel
The second phase included provincial visits that comprised at least 3 members of
by members of the Commission to publicise the Commission and one or two per-
sons with expertise on any matters
the Inquiry and to encourage people to en- referred to in the terms of reference
gage with the Inquiry by way of making sub- for the investigations and inquiry.10
missions. q After the hearings the Chairperson
and panel members prepared a Final
Third phase - public hearings Report on the Inquiry.
q The Final Report will take due notice
The third phase of the Inquiry included hear- of all submissions, allegations, re-
ings in all nine provinces. The SAHRC chose sponses and points of law and fact.
to conduct the hearings in rural settings such q Following an analysis of the evidence
as Malmesbury, Thabazimbi and Ventersdorp, submitted, the panel would make
in order to encourage local people to attend findings and recommendations.11
q The Final Report of the Inquiry and
and participate in the hearings. the Findings and Recommendations
will be made public at meetings to be
During the course of these hearings, the convened by the SAHRC.12
Commission received evidence from a range
of players and stakeholders, including those
who represented organised agriculture such Scope of the Report
as Agri SA, those that represented farm dwell- All aspects of human rights could not be given
ers, NGOs, trade unions, constituency of- direct attention in each province, or in rela-
fices, local councillors and government de- tion to the different vulnerable groups within
partments. In particular, the Departments of the farming communities. Where sufficient
Land Affairs, Agriculture and Labour attended information was obtained about a particular
aspect of the human rights situation within
4
the province, it is highlighted and discussed.
It does not imply that the experience of the Definition of farming communities
Refers to any owner, dweller, worker
province or the vulnerable groups is neces- and labour tenant, on any farm, included
sarily confined to the experience as described but not limited to commercial and cor-
in this Report. The evidence and information porate farming, the SANDF, the Parks
provided to the panellists has shaped the Fi- Board, game lodges/tourist operated
nal Report. It is anticipated that read as a initiatives in farming communities.
whole, the Report will provide an accurate
reflection of the broad trends of the human
rights situation in farming communities and The Inquiry recognises the many difficulties
the underlying causes of human rights abuses with the definition and use of the term “farm
that occur. attack”. The Chapter on Safety and Security
spells out some of the problems with the term
The voices of farm dwellers and specific Findings and Recommendations
The Inquiry received criticism from repre- are made in this regard.
sentatives of farm dwellers and farm owners
that no space was given for farm dwellers to Statistics
speak directly to the Inquiry about their daily The Inquiry began with an assumption that
human rights realities. Since provincial visits there are many statistics that have been com-
were undertaken and individual submissions piled relating to the focus groups of the In-
obtained from people living on farms and quiry. As the Inquiry set about gathering data,
their representatives, the panellists were sat- it became increasingly apparent that these
isfied that the voices of farm dwellers had statistics, in many cases, do not exist. Fur-
been heard and are reflected in this Report. thermore, most government data does not
make distinctions between urban and rural
Former homelands communities or distinctions within rural com-
It was never the intention of the Inquiry to munities as to who lives on farms and who
exclude the former homelands from the does not. In addition, it was consistently re-
scope of the Inquiry. However, insufficient ported to the Inquiry and confirmed by Agri
information was obtained to do justice to the SA that to obtain access to farms is problem-
issues that were raised in these specific ar- atic. This accounts for the lack of indepen-
eas. The DLA state that they are waiting on dent research being conducted by NGOs and
national comprehensive legislation that will other institutions. It is therefore difficult to
replace the Interim Protection of Land Rights quantify the nature and the scale of human
Act 31/96 to attend to the issues of land rights rights violations that occur in farming com-
in the former homelands. munities.

Terminology Without statistics it is easy for some to deny


The Final Report refers to owners as farm that human rights violations in farming com-
owners, farmers and employers, depending munities occur. The Inquiry is confident, how-
on the context. In respect of those who are ever, that based on the repetition of claims
not owners, the terms dwellers, tenants and of violations throughout the country, that
workers are used in context. Farming com- these violations do occur. Even where these
munities refer to all who live on farms. violations may not occur on a widespread
basis, the fact that they may occur in isolated
incidences does not detract from the seri-
ousness of the violation or the fact that it is
an unacceptable violation that must be ad-
dressed.

5
South Africa has a continuing legacy of many The provincial hearings
farm dwellers having an apparent lack of faith The provincial hearings were held from July
in the service the police provide in enforcing to November 2002. The provincial chapters
the law and protecting people. There is con- begin with the Western Cape and end with
tinued under-reporting of violations in this Gauteng, in the order in which they took
area. The view of the Inquiry is that the sta- place.
tistics that have been provided are not nec-
essarily an accurate reflection of a par- The provincial chapters follow a standard for-
ticular situation. mat so that readers with a particular area of
interest can access the information that is of
Structure of the Final Report relevance to them.
The Final Report seeks to reflect the infor-
mation that was provided to the Inquiry and The purpose of setting out separate provin-
which formed the basis of the Findings and cial chapters is to draw attention to the dif-
Recommendations that were arrived at. ferent nuances within the realities experi-
enced by members of farming communities
The national hearings around the country. These chapters also pro-
The national nearings were held in Decem- vide the opportunity to draw attention to
ber 2002 after the provincial hearings. Dur- those areas in the province that need par-
ing the course of the provincial public hear- ticular attention by role-players. Finally, the
ings, some of the information received was report highlights the initiatives taken by gov-
not always conclusive. Provincial departments ernment departments and other role-play-
would refer to the national department as ers, that have set about addressing the com-
having the competency to respond. This cre- plex and difficult challenges that are faced
ated the need to invite national government when attempting to realise human rights in
departments to respond to these issues and farming communities.
other general trends that fall within their com-
petencies. Civil society role-players were also Findings and Recommendations
invited to participate in the hearings. This sets out the Findings and where neces-
sary, the corresponding Recommendations of
The Report of the national hearings is placed the Inquiry.
at the beginning of the Report as it provides
an overall framework of some of the major
issues that were raised in the provinces. The
chapters cover the areas of Land Rights,
Labour, Safety and Security and Economic and
Social Rights.

A separate chapter on labour has been in-


cluded in the Report although this was not
identified as a major focus area of the Inquiry
in its Terms of Reference. It became appar-
ent that labour issues impact greatly on many
rights of those who live in farming communi-
ties and that they cannot be ignored.

6
CHAPTER 2

Land Rights

Introduction Since 1994, the government has developed a


One of the major challenges facing the new three-pronged approach to land reform in
democratic dispensation in South Africa was South Africa, which is set out in the 1997
the denial of access to and ownership of land White Paper on South African Land Policy.
by the majority of South Africans. In negoti- The three legs of land reform are: restitu-
ating the new Constitution, obligations were tion, redistribution and land tenure reform.
placed on the new government to address
the injustices of the past and the imbalances Tenure Security
that had been created concerning land own- Tenure security refers to the degree of secu-
ership and use in South Africa. The property rity that a person has in order to reside on
imbalances that exist have resulted in 87% and enjoy rights in land, other than owner-
of land remaining in the hands of 13% of the ship rights. In South Africa, examples of
population and 13% of the land being in the people who are in need of their tenure secu-
hands of 78% of the population. Rights in rity rights being strengthened are labour ten-
rural land still predominantly reflect the past ants, farm workers and persons living in the
patterns of land ownership in South Africa. former homelands. Strengthening tenure se-
White farmers own the land whilst poor Black curity comprises the third leg of the
people obtain tenure on the land as farm government’s land reform programme.
workers. The Extension of Security of Ten-
ure Act 62/97 (ESTA) is the most relevant A scourge of evictions has plagued South Af-
piece of legislation that affects the rights of rican farms since the colonial era. The in-
both farm dwellers and farm owners. equality in power between farm worker and
farm owner and the lack of effective legal
A host of issues needed to be explored at mechanisms to protect farm dwellers creates
the national hearings. In respect of tenure se- a power imbalance that contributes towards
curity, the issues of amendments to the leg- evictions occurring. It is estimated that dur-
islation and access to legal representation ing a thirty-year period (1950 – 1980) be-
dominated the national hearings. A substan- tween 1,29 and 1,4 million people were
tial part of the hearing was spent on explor- evicted from predominantly White-owned
ing the government’s land redistribution farms in South Africa.1
programme that has received criticism from
civil society role-players as not assisting cur-
rent farm dwellers. 7
Legislation to promote and protect Persons protected in terms of ESTA are
land tenure in South Africa those who
q live on land that is not township
Land Reform (Labour Tenants) Act land;
3/96 (LTA) q who have permission to live on the
q Aims to protect the rights in land land;
of labour tenants and provides a q who are not labour tenants; and
mechanism whereby they may q whose income is less than R5 000
gain ownership of land that they per month.3
have occupied.
The Act seeks to
Communal Property Association q Provide for measures with State
Act 28/96 assistance to facilitate long term
q Provides a new mechanism security of land tenure;
whereby groups of people may q To regulate the conditions of
acquire rights in land and own land residence on certain land;
collectively. q To regulate the conditions on and
circumstances under which the
Interim Protection of Informal Land right of persons to reside on land
Rights Act 31/96 may be terminated; and
q Provides for the temporary q To regulate the conditions and
protection of rights in land of circumstances under which
persons living in the former persons, whose right of residence
homeland territories. The Act is has been terminated, may be
extended annually. evicted from land.

The Extension of Security of Tenure The ESTA is a largely procedural piece


Act 62/97 of legislation. It sets out the rights and
q Aims to protect occupants of land duties of landowners and farm dwell-
other than township land from ers and the procedures that must be
arbitrary evictions, sets out the followed in order to lawfully evict a
rights and duties of occupants person from the land. It is a complicated
and landowners, provides for and technical piece of legislation. The
mechanisms to ensure long-term high number of eviction orders that
tenure security. have been overturned by the Land
Claims Court when they were sent on
Transformation of Certain Rural Ar- automatic review is evidence of this.4
eas Act 94/98
q Deals with the land tenure In short, the procedure to evict a per-
patterns in the 23 so-called son is as follows:
Coloured reserves in the q There must be lawful termination
Western, Northern and Eastern of an occupier’s right to residence
Cape and the Free State on the land;
provinces. q The occupier must fail to vacate
the land despite due demand by
The Extension of Security of Tenure the landowner;
Act 62/97 (ESTA) q A section 9(2)(d) Notice must be
issued and served on the occupier,
In terms of section 25(6) of the Consti- the local municipality and the head
tution, Parliament passed ESTA and it of the relevant provincial office of
came into effect on 28 November 1997. the DLA. This Notice informs the
Certain provisions were retrospective occupier that in two months’ time
to 4 February 1997.2 The primary pur- the landowner will approach the
pose of the Act is to protect farm dwell- court and request an eviction
ers, referred to as occupiers in ESTA, order;
from eviction and to ensure that evic- q Court proceedings must request
tions occur in a lawful and constitutional the eviction of the occupier from
manner. the land;
8
Multi-fold impact on human rights of an
q In making a determination eviction
whether to evict an occupier a
section 9(3) report must be placed
Unlawful evictions impact upon the human
before the court; rights of farm dwellers. Not only is the right
q At court, depending on when to tenure security violated but so too is the
the occupier came to reside on the right not to be arbitrarily evicted. In some
land (the legislation makes a instances, the right to access to water, hous-
difference between occupiers who
occupied the land prior to and
ing, education for children, family life (evic-
post-4 February 1997), the court tion often leads to the separation of families)
will take into account different sets and dignity can also be violated.
of considerations before granting
an eviction order; Review of legislation
q Any eviction order that is granted
in terms of ESTA must be sent
The national Department of Land Affairs is
on automatic review to the Land responsible for formulation of policy, legisla-
Claims Court before the eviction tion, and systems and procedures, which is
may be carried out; and informed by information and feedback re-
q Only the sheriff of the court and ceived from provinces.7 The Department is
persons specified by the court
may assist in the actual eviction.
currently in discussions to merge ESTA and
LTA to further rationalise legislation with a
Section 4 of ESTA makes provision for view to having one Act for occupiers on land.
the granting of subsidies that will pro- It is unreasonable to have two pieces of leg-
mote tenure security. islation that set out different procedures and
Disputes in terms of ESTA can be
rights for people living on farms. Also, the
settled in court or referred to arbitra- LTA has become legally irrelevant in part, as
tion and mediation at the equest of one the application deadline has passed. There is
of the parties.5 a need to consolidate legislation to ensure
that people’s rights are protected, and the
It is a criminal offence to evict a person
other that with an order of a compe-
Department is currently working on a draft
tent court. The penalty is a fine or im- Bill and a draft policy document that will be
prisonment (maximum 2 years) or presented to the Minister in 2003.8
both . 6
Most role-players raised issues with ESTA and
LTA legislation during the provincial hearings
Prevalence of evictions and there is agreement that amendments are
There are no recorded and accurate statis- necessary. However, there are vast differ-
tics on the number of evictions that take ences in terms of the amendments that role-
place. Reports from rural NGOs and service players seek. For example, some argue for
providers indicate that many evictions still the recognition of user rights in land to pre-
occur and that the provisions of ESTA are vent landowners from removing these rights
generally not applied. The eviction orders (e.g. grazing rights for livestock);9 legislating
referred to in the Land Claims Court repre- the provision of legal representation for farm
sent only a small percentage of evictions that dwellers faced with eviction; and legislating
take place where the landowner has followed that the magistrate should inquire if ESTA is
the procedures set out in ESTA and has suc- applicable.10 Agri SA supports the concept of
cessfully been granted an eviction order by security of tenure while stating that in its
the magistrate’s court. present form ESTA has many unintended
consequences. Agri SA is waiting for the re-
sults of research being conducted by the

9
University of Stellenbosch that aims to es- is, however, difficult to ensure that other gov-
tablish the impact of the legislation on hous- ernment departments prioritise land issues,
ing and job creation.11 It is unclear which pro- and this is cited by the DLA as one of the
visions in ESTA are not supported by Agri major problems with the implementation of
SA; but the redrafting of the legislation is ESTA and LTA. For example, responsibility
viewed as an opportunity to renegotiate the continues to shift as farm dweller housing is
legislation.12 not a priority for the DoH and the provision
of housing is not the work of the DLA.17
Perceptions of lack of integration and co-op-
eration between land reform stakeholders The DLA will be commissioning research
The DLA states that in their policy and legis- projects to establish the reasons for the pro-
lative drafting they have systematically at- liferation of informal settlements outside of
tempted to encourage stakeholder participa- rural towns.18
tion. The Department hosted an ESTA Re-
view in 1999, to which a broad range of stake- Legal representation for farm dwellers
holders from the NGO community, the agri- A recurring issue in all the provinces was the
cultural sector, other government depart- lack of access to legal representation by farm
ments and provincial implementers were in- dwellers faced with ESTA legal proceedings.
vited. A second large stakeholder meeting In instances where legal representation was
was the Land Tenure Conference in 2001 in provided, the perception was that lawyers
Durban. Recommendations on amendments provided at State expense were sometimes
to ESTA were discussed at this gathering.13 incompetent or not as skilled as the lawyers
The DLA participates in other government that were instructed by farm owners. A fur-
department initiatives such as NOCOC ther issue was the apparent lack of enforce-
meetings convened by the Department of ment of the Nkuzi judgment that provides
Safety and Security. 14 The DLA also calls farm workers with legal representation in
meetings with other government depart- land matters.19 For many farm dwellers the
ments to discuss issues, such as recent at- lengthy court proceedings can have the ef-
tempts to bring together the DDGs from the fect of justice delayed being justice denied.
Departments of Safety and Security, Defence,
Agriculture, Justice and Labour to discuss the Agri SA, as in the provinces, was defensive in
concerns of the Landless People’s Movement. its approach and clearly felt victimised by the
However, the relevant officials did not attend process. Information placed before the In-
the meeting.15 At a provincial level there are quiry was referred to as untested allegations
various fora where stakeholders are brought that aim to tarnish the image of farmers,20
together to discuss farm dweller issues. The cruel generalisations,21 broad allegations 22
DLA has also provided training programmes and misinformed generalisations. Where vio-
on ESTA and LTA to hundreds of magistrates lations do occur, they can be attributed to
nationally, prosecutors, lawyers, police and the lack of law enforcement. Those who are
DLA officials. The DLA is participating in a responsible for violations are not necessarily
Department of Justice initiative to set up a farm owners or farmers, as there is a lack of
national task group around the implementa- clarity on this definition. Farmers that do
tion of ESTA.16 commit violations are “bad apples”23 and a
complete picture has not been provided as
The DLA has participated in various task the farm worker was not represented at the
groups with the DoL and has been involved Inquiry.24
in discussions around the use of illegal labour.
The DoL has conducted discussions with the
DoH about the provision of rural housing. It
10
Delivery of legal services providing for the needs of the farming
The majority of farm dwellers are unable to communities. 27 Thirdly, the LAB contracts
afford the services of a private lawyer and with a legal provider, including universities,
are reliant on the provision of legal services to provide services to people who cannot
through the Legal Aid Board (LAB) or an in- afford them. The co-operation agreements
dependent legal service, provided by a uni- are intended as an interim measure to pro-
versity law clinic or NGO. Persons who vide legal services in areas where the LAB
qualify in terms of the means test of the LAB does not have a presence or only provides
can apply for legal aid for representation in particular kinds of services.28
both criminal and civil matters. In respect of
criminal matters, the LAB considers the seri- Currently, the provision of legal services by
ousness of the matter as well as the income the LAB concentrates mainly on criminal and
of the person. In civil matters, the income of family law matters.29 Most staff in Justice Cen-
the person and the prospect of success is tres are fully occupied with criminal matters.
considered. Currently the income after a The LAB acknowledges that there is a need
person’s basic deductions is R850,00 per for further training and improvement with re-
month.25 Given the general wage level reports gard to negotiation skills of lawyers that are
received during the Inquiry, most farm dwell- based in Justice Centres.30 The LAB has iden-
ers would qualify in terms of the means test. tified that they need to improve on the qual-
ity and variety of legal services offered. The
LAB informed the Inquiry that the problems
“In all the above cases it is clear that hu- identified will be addressed at a strategic
man rights have been violated and the workshop in January 2003.31
State has not done anything to address
the issues. Instead it is up to NGOs, con-
stituency offices, advice offices and other Justice Centres tend to be concentrated in
community structures to champion urban areas, as this is where the need for le-
people’s rights.”26 NLC gal services is greatest. It is anticipated that
through reducing costs in urban areas those
funds could be used to establish Justice Cen-
The LAB states that there is no impediment tres in other areas. Justice Centres are al-
in the policies or rules to the provision of ready establishing satellite offices in some of
legal aid to farm dwellers. There are practi- the rural areas. The LAB has a programme
cal problems as regards service delivery. The of establishing further Justice Centres during
LAB is currently engaged in an active 2003, with the aim of creating a national grid
programme to provide legal services in terms of 60 centres from which legal aid services
of its constitutional obligations. Practically, are provided.32
this is done through three mechanisms.
Firstly, the provision of traditional judicare, The criteria for deciding to establish these
where legal practitioners in private practice centres are population density, existing de-
are instructed and paid by the LAB to pro- mand for services, poverty and existing pro-
vide legal services. Many legal practitioners vision of services by NGOs.33
are unwilling to take on matters at the cur-
rent LAB tariff rates. Secondly, salaried law- In respect of referral work related to eco-
yers at Justice Centres are also employed. nomic and social rights, such as accessing
There are currently 28 Justice Centres social grants, the LAB states that this is also
throughout the country. The LAB is in the an area identified for improvement. The LAB
process of establishing a further 29 offices. is beginning to work more with paralegal as-
The LRC stated that Justice Centres are not sociations which are often best placed and
being established quickly enough and are not experienced to work on economic and so-
cial rights issues.34
11
Perceptions of incompetence of LAB attorneys who will take up the matter at a national level
Where the LAB is placed in a position that with the LAB. The DLA has provided the LAB
demonstrates that the lawyer is in fact incom- with a list of ‘hot spots’ where there is a need
petent, the LAB will no longer instruct the for specialised land dispute centres.40
person. With regard to salaried lawyers,
there is a need for practical legal education The DLA sits on the Board of the Rural Legal
in civil matters.35 Trust (RLT) in an advisory capacity and was
involved in raising funds for the establishment
Finally, with regard to the perceptions and of the RLT. The DLA also recognises that le-
often realities that many cases drag on and gal services are expensive and time consum-
are too protracted, the LAB indicated that ing and that by the time the matter reaches
these are issues for the rules of the court and court, the relationship between the parties
active case management by judicial officers.36 breaks down. The Department is in the pro-
cess of designing an alternative dispute reso-
Rural Legal Trust (RLT) lution system, which will be piloted in 2 prov-
The RLT was established in 2001 with donor inces, to look at methods of resolving land
funding to disburse large sums of money to disputes outside of the court process.41
centres to assist with legal representation of
farm dwellers. The RLT began its roll out in
KZN, Mpumalanga, Gauteng, Southern Cape “Government unfortunately did not, inas-
and Eastern Cape. Investigations are still un- much as it enacted the legislation,
recognise that it had to lend a serious
der way for Northern Cape.37 There is con- helping hand to the farming community,
cern from NGOs that while interim donor by way of representation. Rather than
funding exists, there is little impetus to seri- simply pass the laws and leave it in the
ously address the need for legal representa- hands of NGOs like ourselves to take up
tion of farm dwellers. the cudgels on behalf of farming commu-
nities, it is our view that government it-
self should have recognised the vulnerabil-
DLA response ity of these communities and should have
Following the collapse of IMSSA (Indepen- lent a helping hand right at the
dent Mediation Services of South Africa), outset.”42 LRC Spokesperson
which administered a Land Reform Media-
tion Panel, the responsibility for mediation
rests with the provincial offices. Either offi- Legal evictions - automatic follow up
cials from the provincial DLA should medi- Where an occupier is legally evicted there is
ate, or where there is money in the provin- no automatic follow up process with a de-
cial budget, then panellists should be used.38 velopment and settlement programme as this
depends on the capacity within the provin-
In order to address the Nkuzi judgment, the cial department. Many planners lose track of
DLA set up a workshop to discuss the impli- these cases as they continue with courtroom
cations of the judgment. The DoJ did not send business.43
a representative. The DLA are presently us-
ing their own budget to obtain legal repre- DLA programmes are currently demand-
sentation for farm dwellers threatened with driven, which has been identified as problem-
eviction.39 The LAB has assured the DLA that atic. In order to address the issue the DLA is
while Justice Centres are being established, considering a number of ways in which tasks
the LAB will continue to issue instruction to can be devolved to district level.44
attorneys. Where there are difficulties in the
granting of instructions, an attorney who is
willing to take on a case can contact the DLA
12
Section 4 subsidies Labour tenants
The DLA was asked to respond to the infor- Due to historical land tenure patterns of the
mation received from provinces that section colonialists, labour tenants are found pre-
4 subsidies, in terms of ESTA, are not being dominantly in KwaZulu-Natal and
fully utilised in appropriate circumstances as Mpumalanga. It is estimated that there are
the procedure is lengthy and requires direct up to 250 000 labour tenants in South Af-
approval from the Minister. rica.49

The DLA reported that the final approval of The Land Reform (Labour Tenants)
the Minister slows down these projects. Pro- Act 3/1996
vincial directors approve LTA projects. Ac- This Act seeks
cording to the DLA, frustrations develop in q To provide security of tenure to
labour tenants and those persons
provinces such as Mpumalanga and KZN occupying or using land as a result
where there are combined LTA and ESTA of their association with labour
projects. The difficulty arises in that the Min- tenants;
ister must approve the ESTA project and the q To provide for the acquisition of
provincial director the LTA project. As a re- land and rights in land by labour
tenants;
sult, the LTA project may be approved prior q To protect labour tenants from
to the ESTA project which in turn slows down eviction; and
the labour tenants project.45 There are plans q To make provision for the labour
within the Department that are being con- tenant to apply to acquire
sidered to rationalise the delegation for ap- ownership of land that he or she
occupies.
proval of projects and to bring approvals onto
the same level.46 Labour tenants are persons who live on
another person’s land and in exchange
The statistics for successful section 4 projects for their tenure they provide labour. 50
that have been completed nationally were In order to claim ownership of the land
occupied by the labour tenant, an ap-
promised by the DLA in the final written sub- plication must be lodged with the Di-
mission, but were not forthcoming. rector-General of Land Affairs. The cut
-off date for applications to be lodged
Programmes for secure tenure for the elderly was extended to 31 March 2001 as very
The Inquiry wanted to know from the DLA if few claims were received by the DLA.
By March 2001 only 2 197 claims were
there were any programmes that created se- lodged in KwaZulu-Natal and 2 086 in
curity of tenure, specifically for the elderly Mpumalanga.
who did not qualify as long-term occupiers
in terms of ESTA. This question was posed The process provided for in the Act to
as a result of reports from the provinces of process these applications favours the
resolution of claims by agreement with
the elderly being evicted from farms. The the landowner. The landowner may give
DLA responded that the Department has no rights in land to the labour tenant, pro-
pro-active programmes specifically for the vide rights in land to the labour tenant
elderly. However, the prioritisation of for another piece of land, or pay com-
projects lies at a provincial level.47 The DLA’s pensation to the labour tenant. If the
matter is not resolved, it may be re-
policy is to prioritise on-site developments ferred to the Land Claims Court for ar-
for long-term occupiers.48 bitration.

Long-term occupiers are people who The Court will appoint an arbitrator
have lived on the land for 10 years and who will draw up a Report and present
have reached 60 years in age or may no it to the Court, which will then decide
longer work due to disability or ill- the matter. The owner of the land is
health. entitled to just and suitable compensa-
tion. 13
Factors that have contributed to claims be-
ing processed too slowly: “There is widespread uncertainty around
the validity of “Permission to Occupy”
q Limited capacity within the DLA to certificates and around who may be con-
deal with the process. sidered the real owners of the land – the
q Changes in Legal Aid Board tariffs that rural people themselves who use and oc-
result in attorneys being unwilling to cupy the land, the traditional leaders who
assist due to the low tariffs being paid allocate land, the elected local councils
who oversee development or the Minister
for their services. of Land Affairs who holds the title deeds.
q Dissolution of the Independent Me- This has created insurmountable obstacles
diation Services of South Africa for both locals and outsiders wishing to
(IMSSA), which co-ordinated a panel invest in communal land, and leaves ordi-
of arbitrators. nary occupiers at the mercy of sometimes
q Proposals to resolve claims at district unscrupulous traditional leaders.”53
level with the co-operation of munici-
palities has been slow due to changes
in municipal structures and capacity Land Redistribution
constraints.51 From 1994 to 1999 the land redistribution
q Insufficient steps taken by the DLA to programme of government targeted the ru-
make people aware of their rights in ral poor. The DLA’s White Paper on South
terms of the legislation and to assist African Land Policy, April 1997, favoured a
them in completing the necessary land reform approach that looked at the in-
application forms. terests of the rural poor based on the willing
buyer-willingseller principle.
Farm dwellers in the former homelands
“The purpose of the Land Redistribution
“In the communal areas of the former Programme is to provide the poor with
homelands, constituting approximately access to land for residential and produc-
13% of the national territory and home tive uses in order to improve their income
to close on one-third of the population, and quality of life. The Programme aims
the system of land administration created to assist the poor, labour tenants, farm
under apartheid is generally in chaos.”52 workers, women, as well as emergent
farmers. Redistributive land reform will be
largely based on willing buyer-willing seller
arrangements.”54
The Interim Protection of Informal Land Rights
Act 31/96 provides for the temporary pro-
tection of certain rights to and interests in
The principal method of effecting this pur-
land, which are not otherwise adequately
pose was through the Settlement/Land Ac-
protected by law. It was intended as an in-
quisition Grant (SLAG). In terms thereof, an
terim measure as the title of the legislation
applicant was awarded R15 000,0055 towards
suggests. However, to date the government
the purchase of land, and related farm capi-
is yet to produce legislation that effectively
tal expenditure such as the enhancement of
gives recognition to rights in land and tenure
tenure rights, investments in internal infra-
security of these persons.
structure, top structure and fencing.

By March 1999, 60 000 households had been


awarded SLAG grants. The majority of these
awards were made to groups who purchased
the land collectively or under share equity
schemes, as small pockets of land are not
14
readily available. Furthermore, land that is
available tends to be expensive. “While LRAD may be able to meet the
needs of a small minority of emergent
Black farmers, it is unlikely to come close
With the appointment of the Minister of Land to meeting the needs of the mass of poor
Affairs in June 1999, a major policy analysis and landless households or to transform-
was undertaken by the Department of Agri- ing the racially skewed pattern of land
culture and Land Affairs. This was accompa- ownership.”58
nied by a moratorium being placed on new
projects in the Department for most of 2000,
even though it was officially lifted in Febru- A number of practical limitations to the LRAD
ary 2000. The new policy shift has been have also been identified. These include:
viewed as a move away from focussing on q No mechanisms to ensure that
land redistribution for the poorest of the women, the unemployed and the very
poor, to concentrating on creating a middle poor can participate in the
class of Black commercial farm owners. Programme.
q The design of the projects still re-
To enact this policy shift, the DLA developed mains in the hands of private consult-
a new redistribution programme entitled Land ants.
Redistribution for Agricultural Development: A q Major responsibilities have been given
sub-programme of the Land Redistribution to provincial government without the
Programme (LRAD). The other two sub- necessary financial commitments to
programmes of the Land Redistribution ensure that these responsibilities can
Programme are programmes dealing with be carried through.
land for residential settlement and land for q Commercial production has been
non-agricultural enterprise such as stressed over the recognition of the
ecotourism. fact that there is a need for part-time
farming by millions of households for
Previously the SLAG Programme comprised survival purposes.
all the funds for the redistribution projects q Local government’s role is unclear
within the DLA. However, in the 2001/2002 and it fails to address the link between
financial year it comprised only 24,5% of the land reform and wider aspects of ru-
budget.56 ral development.59

The LRAD was finally launched on 13 August The LRAD does not deal with the traditional
2001. Its purpose is to transfer 30% of all commonage issues and with the land issues
agricultural land over a period of 15 years.57 in the former homelands.

Challenges facing land redistribution The LRAD does not enjoy the support of
Share equity schemes that were established organisations such as the National Land Com-
in terms of the SLAG Programme have taken mittee (NLC) which represent landless
a long time to be established. Often, the farm people. According to the NLC, LRAD is “…a
workers who become landowners are not narrow and piecemeal approach to land and
sufficiently equipped with the skills and nec- agrarian reform…” in this country. The
essary resources to create a viable commer- programme fails to put the question of land
cial farm. into perspective; it places too much respon-
sibility on the farm worker, and does not guar-
antee participation of women, the youth, the
disabled and the aged. It also does not ad-
dress a broader rural and agrarian reform.60
15
The NLC is of the view that the programme Steps by government to speed up land
has moved from one that was intended for redistribution
poor people to one that is elitist.61 In order to speed up land redistribution the
Minister of Land Affairs has called for the
Delivery of land redistribution expropriation laws to be revised. This is be-
The DLA still has a long way to go in terms cause the market price of land soars as soon
of redistribution. The aim of government was as it becomes known that land will be ex-
to have 15 million hectares of land distrib- propriated for redistribution purposes.
uted by the year 2005, while 30% of rural Thereafter the expropriation becomes legally
fertile land would be distributed over 15 contested. This does not appear to happen
years.62 However, the process of land redis- when land is being expropriated for other
tribution has been very slow. From 1994 to public purposes, such as the building of roads
the end of 2000, only 684 914 hectares of and railways.67
land were transferred in terms of the
government’s land redistribution pro- The Minister has also promised that State land
gramme. During this period the DLA ap- will be distributed in an attempt to speed up
proved 5 606 projects, of which land was the land redistribution process. This policy
transferred in only 2 729 projects. In 1998 is also a response to the fact that private land
and 1999 the DLA transferred land in just is expensive to acquire. It is unknown at this
over 1 000 projects for each of the years. stage how many hectares of State land have
However, in the year 2000, land was trans- been distributed in terms of the government’s
ferred in only 89 projects.63 To date, less than land redistribution programme.
2% of agricultural land in the country has
been redistributed.64 Government has also recognised the link be-
tween land redistribution and rural develop-
ment. In order to address this issue the Min-
“The key constraints to delivery are: ister, in a Parliamentary media briefing held
q The inadequate government in February 2001, stated that:
capacity for land reform.
q Scarcity of human resources at
government level. “The Integrated Rural Development Policy
q Lack of co-ordination and of the government as a whole is intended
integration with other spheres of to concentrate public investment and ser-
government and departments. vice delivery improvements in areas within
q Lack of effective organisational, the poorest provinces, which have the best
technical and managerial support to prospect for significantly increasing pro-
new farmers and land reform duction and employment among the dis-
beneficiaries beyond the point of land advantaged. This requires much closer co-
acquisition.”65 ordination between government depart-
ments and the strengthening of district
and municipal level planning, and this will
be one of our priorities in land reform de-
The Minister of the Department of Land Af- livery. A White Paper on Development
fairs admits that the slow pace of the land and Planning will be produced in the course
reform programme can be attributed to the of the year.”
lack of human resources and capacity within
the DLA at provincial and national govern-
ment level.66 The DLA continues to under- Commitments have also been given by the
spend its annual land reform allocation due Minister to reduce the time it takes for land
to limited administrative capacity. redistribution projects to be finalised. It has
been stated that the Director–General and
the Chief Financial Officer in the Department
16
are addressing the time lag between approval through Provincial Grant Committees
of projects and actual spending. The aim is that discuss business proposals from
to ensure that there is only a nine-month pe- beneficiaries.
riod between approval and spending on a q The Provincial Grants Committee
project.68 that processes LRAD grants has a
check-list to ensure that a programme
It is unclear to what extent these commit- is viable.
ments by the Minister have been followed q The business plans include support
through by the Department. programmes. 71
q Beneficiaries can make a contribution
The national hearings in kind.
A major criticism of the government’s redis- q To address illiteracy, up to 15% of the
tribution programme (LRAD) by role-play- grant can be allocated to land plan-
ers in the provinces was that it does not ca- ning. This is designed to facilitate the
ter for the poor. Coupled with this were the land reform beneficiary in getting a
criticisms that the Department of Agriculture business plan drawn up by the offi-
(DOA) fails to provide the necessary support cials in the province, or by a consult-
to beneficiaries of redistribution programmes ant that the beneficiary chooses.
and that the Land Bank does not cater for q The Department has a policy to place
poor farmers. The Inquiry invited the DLA, two department officials at the dis-
DoA and the Land Bank to explore these is- posal of beneficiaries. These officials
sues. can assist them through the process.72
q National department officials went
Agri SA also criticised the land reform pro- out to provinces and communicated
cess, stating that it does not enhance food with beneficiaries about how the
production. They are currently putting to- programme can assist.73
gether a database of land reform projects that
have failed.69 The DoA are of the view that most LRAD
Programmes launched have been successful.74
A first year review indicates that the
“Land reform has brought uncertainty and programme has benefited the lower end of
disrupts many farmers’ lives. However, the the agriculture sector.75 The Programme is
majority of farmers realise that land re-
form is necessary and Agri SA encourages
reaching its target in terms of the people who
its members to co-operate with the land have been targeted as participants and funds
reform programme.”70 allocated have been spent.76

The DLA does not agree that the LRAD ex-


Response from DLA and DoA cludes poor people. Examples of how the
Both the DoA and the DLA do not believe LRAD Project is working are seen n the West-
that the LRAD does not cater for farm dwell- ern Cape where, 3 436 people have benefited
ers because they cannot afford the contribu- of which 977 were women and 786 were per-
tion. sons below 35 years of age. From August
2001 to October 2002, 12 073 hectares were
A review of the LRAD Programme addressed transferred. In Mpumalanga, 2 656 people
the criticisms that poor people would be have benefited from LRAD projects in which
unable to participate. A number of steps have 10 011 hectares have been transferred. These
been taken to address the issue: figures do not indicate the number of projects
q The LRAD Programme is now that have been established but rather the
decentralised and run by provinces number of people who have benefited.77
17
hold over the management of the farm. These
“While people who cannot read, write or schemes are recognised as problematic and
draw up business plans are not specifi-
cally targeted, the LRAD policy does not
the DoA is investigating them.82
exclude these categories of beneficia-
ries.”78 Criticism about the pace of land reform
Less than 2% of agricultural land in the coun-
try has been redistributed. The DLA at-
The DoA has not done enough to help small- tributes the slowness of land reform to
scale emerging farmers from disadvantaged people not being willing to make land avail-
communities. able. The Department is still in the process
of policy formulation and state that it is a com-
The DoA had a five-year departmental re- plex issue that moves slowly.83
view, after which a consultative process com-
menced that culminated in 2001 with a vi- Government expects 15% of agricultural land
sion for the sector. A social contract was to be transferred by 2004. This translates into
drawn up which became a booklet, The Stra- transferring 1,5 million hectares per year. In
tegic Vision for Agriculture, that identifies a vi- the year 2001, 800 000 hectares were trans-
sion for the agricultural sector based on the ferred.84
premise that the backbone for development
in rural areas is the agricultural sector.79 The Land Bank
The Land Bank (the Bank) was invited to the
Agriculture is a concurrent competency be- national hearings to address the perception
tween national and provincial government. that the Inquiry had encountered in some
It was identified that there is a lack of coher- provinces that the Bank is not doing enough
ence and synergy. Two structures have been to give financial assistance to people from
established to promote principles of coop- previously disadvantaged communities. The
erative government. These are MinMec, con- Land Bank addressed these perceptions by
sisting of the MECs for Agriculture and Land, informing the Inquiry of the types of financial
DGs and Heads of Department. This struc- assistance provided by the Bank and what the
ture meets every 2nd month to review the Bank is doing around access to finance.
problems facing the sector. The Department
has encouraged DGs and Deputy DGs to en-
gage provincial departments of agriculture to The Land Bank
The Land Bank is a statutory body cre-
try to identify gaps in order for the DoA to ated in terms of the Land Agricultural
effectively deliver products and services Development Bank Act.85 Its only share-
within the sector.80 holder is the State. The Bank’s vision is
to be a world-class provider of finan-
Share equity schemes cial services to the agricultural and re-
lated rural sectors. Its mandate is to
Statistics on the number of share equity have a developmental role within the
schemes implemented nationally, and on the rural agricultural sector with emphasis
success of these projects were not provided placed on making access to finance avail-
at the national hearing as the DLA’s Redistri- able to those who were previously
bution Directorate was not able to provide marginalised in terms of race and gen-
der. It also provides support to com-
such information.81 mercial farmers, which still accounts for
the majority of its work. The focus of
Share equity schemes are a coming together the Bank is to remove the legacy of ra-
of unequal parties, with some farmers using cial discrimination in the sector.86
these as a vehicle to attempt to resolve fi-
nancial difficulties. Farmers often retain their
18
Access to finance
To this end, the Bank has set a target • Establishment of Black commercial
growth rate of 50% per annum for its
development, compared to the 3-5%
farmers
growth rate for the sector in general.87 From time to time the Land Bank acquires
In its commitment to equality, the Bank ownership of farms and used this as an op-
pointed out that any person who has portunity to assist Black commercial farm-
violated the Promotion of Equality and ers onto properties. During 2002, the Bank
Prevention of Unfair Discrimination Act88
(PEPUDA) will not be eligible to sit on
dispensed 73 of the 120 farms brought into
the Board of the Bank,89 and that the its possession to emerging Black farmers.96
Bank will not employ or do business
with such persons.90 • Skills and capacity-building
The Bank has approached this in two ways.
First, the Bank has created a Mentorship
Financial Assistance provided Programme where current Land Bank clients
• Step-up loans mentor emerging Black farmers and are
Step-up loans are a micro-finance product awarded 50% of the costs of doing this by
which includes a loan and a small savings com- the Bank. The Land Bank has had discussions
ponent. The smallest loan amount is R250, with Agri SA concerning participation of its
00 to a maximum of R18 000,00. The Bank members in this programme. The Bank esti-
currently has 108 000 clients, 65% of which mates that less than 2% of their clients who
are women, accessing these loans to the sum have participated in the Mentorship
of R246M, with a repayment rate of 88%.91 Programme have been farm workers.97

• Retail loans Second, the Bank has developed a Social Dis-


These loans are for people who have moved count Product (SDP) which provides incen-
beyond step-up loans and are aimed prima- tives to farmers to enter into mentorship
rily at emerging Black commercial farmers. programmes, and to become engaged in so-
The Bank has loaned in excess of R100M in cial upliftment programmes with the work-
this category.92 ers on their farms. 98 The incentive-based
products have not been as successful as the
• LRAD grants Bank anticipated. Reasons cited for this are
The Bank entered into an agency agreement that a tri-partite agreement between farmer,
with the DLA to distribute LRAD grants. By workers and the bank must be obtained,
December 2002, the Bank had approved a which creates challenges in terms of how the
sum of R194M in grants to 1 753 clients.93 parties understand the product and what they
hope to achieve from it. Some farmers are
• Development projects deterred by the list of minimum social and
These are projects for groups of people. The employment conditions that must exist on
Bank has currently provided finance in the the farm as a prerequisite to participating in
amount of R259M to 329 projects.94 the Programme.99

• Participation in land claims settle- The Bank has also established a development
ments fund of R5 million, which is dedicated to skills-
The Bank has signed an agreement with the and capacity-building, with support going to
Land Claims Commission to provide finance the National African Farmers Union (NAFU)
to assist in making awarded land productive.95 and the National Emerging Red Meat Pro-
ducers Organisation (NERPO).100

19
tices after 19 June 1913. The process is not
“We would not lend money to somebody aimed at farm dwellers per se but rather any
who is doing something that was uncon-
stitutional; … we have clients of the Land
person who was dispossessed of land and
Bank who have been clients of the Bank who is entitled to claim in terms of the legis-
for 30, 40 plus years, so I cannot sit here lation and the Constitution. In order to fa-
and say on oath, that every one of these cilitate restitution the government passed the
members meets the conditions of the SDP, Restitution of Land Rights Act in 1994.
but I think they understand that is the
basis on which we do business. And there
is an understanding that we will refuse to
advance monies to people who do not Land Claims
meet those criteria.”101 In terms of the legislation, the Commis-
sion on the Restitution of Land Rights
(CRLR, also known as the Land Claims
Commission) and the Land Claims
• Youth Court were created to facilitate the
The Bank has provided a number of bursa- restitution process.
ries available to youth to study agriculture.
The Bank has also entered into agreements In order to lodge a land claim, the claim-
ant must have been dispossessed of a
with the National Youth Commission where right to land after 19 June 1913 as a re-
they are establishing four development sult of past racially discriminatory laws
farms.102 or practices, not paid just and equitable
compensation and the claims must have
• Monitoring the Bank’s impact been lodged before 31 December 1998.
The Land Bank commissioned an external The CRLR was formally established on
Social Impact Study during 2002 to evaluate 1 March 1995. It is headed by the Chief
its effectiveness in reaching its target audi- Land Claims Commissioner and has six
ence and whether its current methods are offices with Regional Land Claims Com-
working. In particular the study will look at missioners throughout South Africa.
the ‘step up programme’ and determine its The legislation promotes the amicable
effectiveness.103 solution of land claims. Only where
claims cannot be mediated or negoti-
• Outreach ated are they referred to the Land
During 2002, the Bank introduced 44 satel- Claims Court for determination.
lite branches in addition to its existing 27 sat- The legislation provides for restitution
ellite branches. It is experimenting with mo- to be awarded in various forms. This
bile banking in the Eastern Cape and con- includes restoration of the original land
ducted a media campaign through radio and from which the claimant was dispos-
television and various publications. The sessed, being provided with alternative
land or the payment of monetary com-
Bank’s product information has recently be- pensation. If none of these options are
come available in seven of the official lan- suitable, a combination of these types
guages.104 of awards, which may also include shar-
ing of land and priority access to State
Restitution resources such as housing and land de-
velopment programmes, may be
The Interim Constitution (sections 121 – 123) awarded.
created the legal basis to develop a land res-
titution process in South Africa. The legisla-
ture was instructed to draft a law to provide The CRLR has received 67 531 land claims,
for restitution. Restitution is intended to re- of which 80% are urban.
store land to people who were dispossessed
through racially discriminatory laws and prac-
20
As at 31 January 2002, a total of 29 422 claims q The property clause in the Constitu-
had been settled, involving 59 498 house- tion inhibited the government from
holds, 329 141 beneficiaries and 406 120 having a thorough land reform strat-
hectares of land. The CRLR has been egy.
criticised for processing these claims too q Communal Property Associations
slowly. In order to address this problem, a (CPAs) have not been formed and
number of steps have been adopted. These registered quickly enough.106
include:
q The use of project teams focussing on Restitution is proving to be an extremely slow
specific areas. process. Many of the beneficiaries of the pro-
q The handling of claims in batches. cess are in dire economic and social need.
q Outsourcing while at the same time
retaining control. Farm dwellers who have benefited from land
q The settling of a large number of restitution
claims through negotiations as op- At the national hearings the DLA was re-
posed to the lengthy process of liti- quested to provide further information on the
gation. number of farm dwellers who have benefited
q Referring only disputed cases to from the land claims process. The Inquiry was
court. informed that the Commission on Restitu-
q Direct access reviews and appeals. tion of Land Rights (CRLR) does not discrimi-
q The use of alternative dispute reso- nate against farm dwellers and collects infor-
lution mechanisms to fast track the mation on farm dwellers who are benefiting
process.105 from the restitution process. The CRLR dis-
tinguishes between urban and rural claims.
In addition to these steps, the CRLR em- By 31 October 2002, 30,84% of rural claims
barked on a massive validation of claims pro- had been settled.107
cess. Its aim was to validate all claims by 31
December 2001 in order that the number of Of these claims, 27,9% had been settled by
valid claims lodged could be ascertained and way of land restoration. It is not apparent
the CRLR would more accurately be able to from the information provided how many
track its progress. farm dwellers have benefited from the pro-
cess.
Problems and successes encountered with the
restitution process
The National Land Committee (NLC) has
listed the following obstacles as contributing
to the failure of land restitution:
q The legal and bureaucratic approach,
and the extreme slowness of the pro-
cess.
q Lack of communication and informa-
tion to explain the rights of beneficia-
ries of restitution.
q Land redistribution that was based on
market mechanisms which could not
facilitate equal distribution of land in
the country.

21
Restitution in the provinces108
The table below provides an overview of land claims that have been settled in the provinces as at 31 January 2002.

Province Number of Households Beneficiaries Land restored


claims settled involved (hectares)
Eastern Cape 9 193 16 201 81 751 16 115
Free State 866 914 2 926 5 339
Gauteng 5 496 5 444 28 204 0
KwaZulu-Natal 7 226 11 517 66 913 51 460
Mpumalanga 253 3 409 15 054 18 504
North West 1 050 5 628 44 614 58 814
Northern 409 3 783 19 156 221 759
Cape
Limpopo 501 7 660 34 408 28 874
Western 4 427 4 942 36 115 5 225
Cape

International Human Rights Instruments109 The South African Constitution


q UN Declaration of Human Rights The Interim Constitution laid the basis for
1948 many of the land reform initiatives that were
q Convention on the Elimination of all embarked upon by the government since
Forms of Discrimination against 1994. In the Final Constitution, section 25 is
Women (CEDAW) 1979 of relevance to the present Inquiry into land
q The Social Policy (Basic Aims and rights of farming communities:
Standards) Convention (ILO), 1962
q Convention Concerning Indigenous Property
and Tribal Peoples in Independent 25 (1) No-one may be deprived of property
Countries (ILO), 1989 except in terms of law of general
q Declaration on the Right to Develop- application, and no law may permit
arbitrary deprivation of property.
ment, 1986 (2) Property may be expropriated only in
q UN Declaration on Social Progress terms of law of general application
and Development, 1969 (a) for a public purpose or in the
q The Peasants Charter (UN Food and public interest, and
Agricultural Organisation) (b) subject to compensation, the
amount of which and the time and
q African Charter on Human and manner of payment of which have
Peoples’ Rights (AfCHPR), 1981 either been agreed to by those
q American Convention on Human affected or decided and approved
Rights, 1969 by a court.
(3) The amount of the compensation and
the time and manner of payment must
be just and equitable, reflecting an
equitable balance between the public
interest and the interests of those
affected, having regard to all relevant
circumstances, including-
(a) the current use of the property;
(b) the history of the acquisition of the
property;
(c) the market value of the property;

22
(d) the extent of direct State investment
and subsidy in the acquisition and
beneficial capital improvement of
the property; and
(e) the purpose of the expropriation.
(4) For the purpose of this section –
(a) the public interest includes the
nation’s commitment to land re-
form, and to reforms to bring about
equitable access to all South Africa’s
natural resources; and
(b) property is not limited to land.
(5) The State must take reasonable
legislative and other measures,
within its available resources, to foster
conditions which enable citizens to gain
access to land on an equitable basis.
(6) 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 to comparable redress.
(7) A person or community dispossessed
of property after 19 June 1913 as a
result of past racially discriminatory
laws or practices is entitled, to the
extent provided by an Act of
Parliament, either to restitution of that
property or to equitable redress.
(8) No provision of this section may
impede the State from taking legislative
and other measures to achieve land,
water and related reform, in order to
redress the results of past racial
discrimination, provided that any
departure from the provisions of this
section is in accordance with the
provisions of section 36(1).
(9) Parliament must enact legislation
referred to in subsection (6).

23
24
CHAPTER 3

Labour

Introduction were generalisations. Agri SA reiterated that


Despite the extension of basic labour right it has clear policies on child labour, the use
protection to farm workers during the past of illegal immigrants and compliance with
decade, the non–compliance with labour laws labour laws. Agri SA suspects that the cases
and poor working conditions in farming com- referred to the Inquiry do not occur on com-
munities dominated the Inquiry. mercial farms where their members are, but
on smallholdings or on land that is not utilised
The national hearings of the Inquiry con- for farming purposes.1 As was reported in
firmed what had been reported to the Inquiry the provinces, Agri SA has conducted train-
in the provinces; namely, that there is wide- ing with more than 10 000 of their members
spread non-compliance with labour legisla- in labour and land laws. This training, which
tion in respect of farm workers, low wages will continue until 2003, was made possible
are being paid, there is a lack of organisation through funding by the ILO and NORAD
of workers and the Department of Labour (Norwegian Agency for Development).2 Agri
(DoL) inspectors and trade union organisers SA supplements its training courses through
experience difficulties in accessing farms. information placed on its website, weekly
Other issues addressed at the national hear- electronic newsletters, Agri SA’s monthly
ings included child labour, illegal foreign work- newspaper, radio talks, information sessions
ers, access to assistance to enforce labour and farmers’ days.3
rights by workers, training of stakeholders in
labour laws and the abuse of alcohol. The Research conducted by the DoL for the Farm
Inquiry was also informed of steps that have Worker Sectoral Determination Process sets out
been taken to improve the position of farm working conditions on commercial farms in
workers. These include the drafting of a Vi- South Africa. The research conducted for the
sion for Labour Relations in Agriculture and a Sectoral Determinations was the first inves-
Sectoral Determination that sets out inter alia tigation of its kind and provides a clear pic-
a minimum wage. ture of the social and labour conditions and
issues within the agricultural sector.4
Agri SA’s response to the information re-
ceived about general trends in labour condi-
tions made in the provinces was that they

25
Some of the conclusions arrived at in respect It was alleged that the abuse of these provi-
of labour issues by the Department included: sions is acute during harvest time. According
q 70% of all agricultural workers are to COSATU violations are the norm rather
male. than the exception.8
q In 2000 the average cash wage of farm
workers was R544,00 per month.
q Female farm workers are paid less
than male workers and are more
likely not to be registered for UIF and
do not receive training, medical ser-
vices and pension and provident fund
benefits.
q A lack of clarity amongst workers
about payments in kind and benefits.
q 54% of workers sometimes work
longer hours than the legal limit and
generally do not receive compensa-
tion for overtime.
q 27% of farm workers do not get an-
nual leave.
q 92% of males do not get paid annual
leave.
q Pregnant females do not get paid any
maternity benefits.5

Non-compliance with labour legislation


The DoL, COSATU and SAAPAWU reaf-
firmed the contention that there is wide-
spread non-compliance with labour legisla-
tion in the agricultural sector.

“The problem is that the Act (BCEA) is


not being adhered to, deliberately, by
employers in agriculture.” 6 COSATU
spokesperson

“But the impression is created that this is


the rule rather than the exception and
we believe this is definitely not the case.”7
Agri SA spokesperson

The most common occurrences of non-com-


pliance with the BCEA included:
q Non-adherence to working hours.
q Overtime work.
q Working on Sundays and public holi-
days.
q Annual leave and maternity leave pro-
visions.
26
Relevant Provisions of the Basic Conditions of Employment Act (BCEA) 1997

Ordinary q No employer shall require or permit an employee to work more than a


hours of work a) 45 hour week
b) 9 hours in any day if an employee works for 5 days or less in a week or
Section 9 c) 8 hours in any day if an employee works for 6 days or less in a week.

Overtime q An employer may not require or permit an employee-


a) To work overtime except by an agreement
Section 10 b) To work more than 10 hours overtime a week.

Pay for work on q An employee who occasionally works on a Sunday must receive double pay.
Sundays q An employee who ordinarily works on a Sunday must be paid at 1.5 times the
normal wage.
Section 16 q Paid time off in return for working on Sunday may be agreed to.

Public holidays q Employees must be paid their ordinary pay for any public holiday that falls on a
working day.
Section 18 q Work on a public holiday is by agreement and paid at double rate.
q A public holiday may be exchanged with another day by agreement.

Annual leave q Employees are entitled to 21 consecutive days’ annual leave or by agreement,
one day for every 17 days worked.
Sections 20 & 21

Sick leave q An employee is entitled to six weeks’ paid sick leave in a period of 36 months.

Sections 22 - 24

Maternity leave q A pregnant employee is entitled to 4 consecutive months’ maternity leave.

Sections 25 - 26

Family responsibility q Full time employees are entitled to 3 days paid family responsibility leave per
leave year.

Section 27

Written particulars q An employer must supply an employee when the employee commences
of employment employment with particulars in writing.

Section 29

Information about q Sets out the information that must be provided to an employee when paid.
remuneration

Section 33

Prohibition of child q It is a criminal office to employ a child under 15 years of age.


labour and forced q Children under 18 may not be employed to do work inappropriate for their age
labour or that places them at risk.
q Causing, demanding or requiring forced labour is a criminal offence.
Section 43 - 48

27
More than 60% of farm workers are regis-
tered for UIF (Unemployment Insurance Occupational Health and Safety
Fund). It is more likely that a male worker Act 85/1993
This Act provides for:
will be registered than a female worker.9 q The health and safety of persons
at work.
q The health and safety of persons
Unemployment Insurance Act 63/ in connection with the use of plant
2001 and machinery.
This legislation provides for the pay- q The protection of persons against
ment of unemployment benefits to hazards to health and safety
workers. The legislation sets out a scale related to activities in the work
of benefits that will be paid, with lower place.
income contributors receiving a maxi- q The establishment of an advisory
mum of 60% of their remuneration for council for occupational health and
a period of 4 months. It also provides safety.
for payment of benefits to certain em-
ployees in the event of illness, mater-
nity, adoption and certain dependants
of workers. Other basic health issues such as providing
adequate sanitation to workers in the work-
The Act does not apply to employees place are not always adhered to. The lack of
who work less than 24 hours a month. toilet facilities for farm workers in the fields
The Act was extended to farm work-
is common.12
ers in 1994.

The Inquiry was informed that the provisions


of the Employment Equity Act are not ad-
The legislative provisions contained in the
hered to, with gender and race discrimina-
Occupational Health and Safety Act (OHSA)
tion occurring on farms in respect of employ-
for the establishment of committees and ap-
ment conditions and benefits.13
pointment of health and safety representa-
tives are rarely implemented on farms. There
are weak enforcement mechanisms for the Employment Equity Act 55/1998
OHSA, with too few labour inspectors who The purpose of the Act is to achieve
are inadequately trained to carry out the in- equity in the workplace by:
spections in terms of the legislation.10 q Promoting equal opportunity and
fair treatment in employment
through the elimination of unfair
Other violations of the OHSA occurring on discrimination.
farms include: q Implementing affirmative action
q Employers who allow their workers measures to redress the
to work with banned chemicals and disadvantages in employment
pesticides. experienced by designated groups
to ensure their equitable
q Employers who fail to provide pro- representation in all occupational
tective clothing and where protective categories and levels in the
clothing is provided, deduct monies workforce.
for the clothing from the workers’
wages.
q Very little education and training be- Other trends
ing provided to workers on the risks COSATU highlighted other trends in employ-
associated with the use of these pes- ment practices that impact upon the effec-
ticides.11 tiveness and application of labour laws in-
tended to protect the rights of workers, for
example, the replacement of formal and per-
28 manent workers with casual workers.
This is viewed as a deliberate strategy to q Workers being intimidated by the
disempower workers and prevent them from employer to not join the union.23
enforcing their rights.14 Despite job-shedding q Access to farms being restricted,
and further increase in workloads, wages making it difficult for the union to
have not increased. 15 Vulnerable workers, deliver an effective service and to pro-
such as migrants, seasonal workers, women tect workers.24
and children experience a higher degree of
exploitation.16
“This is also indicative of the huge power
Labour consultants relations that exist on the farm, because
if you go to any government department,
In some provinces the Inquiry received com- you think that you are talking to the au-
plaints about labour consultants who give thorities who are able to enforce the laws
farmers incorrect information on land and of this country. But they tell you we can-
labour laws. In some instances, labour con- not go there. The police say we cannot go
sultants were accused of giving advice to there. The inspectors of the Department
employers on how to circumvent the laws. of Labour say, we cannot go there.”25
The DoL states that labour consultants pose
a specific problem in the agricultural sector.
They function for their own financial benefit The DoL points to further difficulties that
and sometimes advise farmers incorrectly. unions have in gaining access to farm work-
The approach by the DoL in incidences where ers. These include:
this is found to have occurred, is to impart q The large geographic areas to cover.
the correct information to the employer.17 q Lack of transport.
q Lack of funds.
Joining trade unions q Levels of literacy in agricultural sec-
There is a low rate of trade union member- tor being low.
ship amongst farm workers. COSATU and q Leadership issues due to many trade
SAAPAWU put this figure at approximately union leaders leaving the movement
6%18 whereas the DoL indicated that the fig- since 1994.
ure may be as high as 7% in certain areas,
and that a national average would be closer Due to the great power disparities that exist
to 4%.19 This low rate of membership is at- between worker and employer and where
tributed to restricted access to farms, em- the consequences of being unemployed are
ployers preventing workers from joining, so dire, many farm workers will do nothing
workers not joining due to fear of to harm their relationships with the farmer.
victimisation and the fact that organising ca- It is therefore difficult to address and unionise
sual and temporary workers is generally more these workers.26
difficult for unions owing to their temporary
status.20 The Vision for Farm Labour recognises that all
employers should respect the right of free-
Trade unions assert that through the dom of association and the effective recog-
organisation of workers there is the poten- nition of the right to organise and bargain
tial to significantly alter the power imbalances collectively. Trade unions should have reason-
in the work place.21 able access to farms and workers should have
the freedom to associate with and the right
General trends that they have identified in to join trade unions.27
farming communities include:
q Workers being dismissed and evicted
when they join a union.22
29
SAAPAWU states that the greatest obstacle contact the police and request them to ac-
to organising farm workers is gaining access company them to the farm. 35 Currently,
to the farms. Therefore legislation to pro- there are approximately 800 labour inspec-
tect workers is not able to assist farm work- tors employed by the DoL for all workplaces
ers.28 SAAPAWU has approached the Minis- in South Africa. There are plans to employ a
ter on this issue.29 The union advocates that further 300 inspectors. 36 The Department
the property clause in the Constitution ought estimates that there are 70 000 farms.
to be changed to remedy the situation.30
The DoL recognises that there is scope for
In response to SAAPAWU, Agri SA argues improved inspection services and has mooted
that access to farms is not freely available to the idea of creating an integrated inspection
everyone. Besides having to comply with the service with other government agencies that
Access Protocol to Farms, the access of trade also have inspection functions. A challenge
unions is stipulated in the LRA. to initiating such a structure is that different
government departments have different
agendas - what may be important to one
“Access for labour unions, if they do not agency may not necessarily be as important
have 50% or more, they cannot just walk to another.37
into a shop or any other private property
and go and canvass people. That is laid
down in the Labour Relations Act.”31 Poor conditions of employment
Wage levels are generally low in the agricul-
“The trade unions are not the problem. tural sector with Limpopo, KZN and East-
We do not really have big problems with ern Cape being the lowest according to
the trade unions and it is part of the rules
and regulations on how labour legislation
COSATU. 38
is written. Our situation is very much more
complex as far as the access is concerned, Child labour
it is more the safety and security risk that Despite the practice of child labour being a
is running so high at the moment.”32 violation of the constitutional rights of the
child and being criminalised in terms of the
BCEA, the research conducted by the DoL
Inspectors and access to farms for the purposes of the Sectoral Determina-
At the national hearings, labour inspectors tion showed that whilst it had been reported
were criticised for being ineffective in ensur- that child labour was occurring in seven of
ing compliance with labour legislation on the nine provinces, 23% of employees con-
farms due to their inability to gain access to firmed to researchers that child labour is used
farms.33 at some time during the year.39 The exact
prevalence and numbers of children who are
The DoL carries out three types of inspec- working on farms is unclear.
tions. These are unannounced blitz inspec-
tions, unannounced inspections in reaction In terms of general trends, COSATU pointed
to complaints that are received and an- to a higher prevalence of child labour in prov-
nounced routine inspections. In those in- inces such as Limpopo and Mpumalanga,
stances where inspections are announced, the where children from Zimbabwe and
Protocol for Access to Farms is applicable.34 Mozambique are used. Farmers also recruit
The experience of the DoL is that where in- the children of their permanent labourers,
spections are pre-announced more often than particularly during the harvest season, after
not inspectors do not experience difficulties school hours and on weekends.40
in accessing farms. In instances of unan-
nounced inspections, the inspectors usually

30
While some children are forced to work, oth- Access to assistance
ers have to work due to poverty and reject The CCMA was established to be a less in-
the advice given to them by trade union offi- tricate and streamlined system to provide
cials.41 The SAPS did not have specific statis- workers with a mechanism to resolve labour
tical information relating to child labour as disputes with employers. The DoL recognises
these cases fall under the SAPS child neglect the great power differentials that exist be-
crime code on their statistical database.42 The tween farm workers and their employers. In
DoL also could not provide statistics as this order to address this the Department is em-
is the responsibility of provincial DoL offices.43 barking on a process of creating an accredi-
tation system where advice officers and union
The Inquiry only heard of one successful pros- officials can represent farm workers in dis-
ecution of child labour. The DoL cited a putes at the CCMA.50
much-publicised case from Ceres in January
2002, as the first case of child labour from The CCMA also performs dispute preven-
the agricultural sector to reach the magis- tion work in the provinces. In the agricultural
trates courts and be successfully prosecuted.44 community this includes holding information
The DoL pointed out that there have been sessions, education and relationship-building
incidences of child labour reported in the interventions.51
press and upon investigation the DoL has
found that there is no basis for the allega- The DoL is currently developing a Training
tions and no evidence of child labour was Discussion Document to address the inter-
found in the investigations.45 face between labour and ESTA legislation,
that will increase the knowledge amongst
Despite the introduction of the Child Labour their officials of ESTA legislation.52
Intersectoral Group (CLIG) structures at na-
tional and provincial level (the structures in Training
Free State, Limpopo and Western Cape are The training of farm workers is facilitated
not functioning and need resuscitation),46 the though the SETAs (Sector Education and
DoL has become aware that combating child Training Authority) and PSETA (Public Sec-
labour demands an inter-departmental ap- tor Education and Training Authority) estab-
proach. To address this, the DoL is in the lished in terms of the Skills Development Act.
process of developing a discussion document The SETA for the agricultural sector is, ac-
on how to deal with child labour with the cording to the DoL, probably one of the best-
view to developing a White Paper and legis- performing SETAs.53 The DoL also has a na-
lation.47 tional fund in the region of R25 – 30 million
per year, which is made available to
Illegal foreign workers organisations to train farmers and farm work-
The DoHA states that it is their responsibil- ers about labour legislation and labour rights
ity to apply the immigration law and in those and to help build the trade unions.54
instances where illegal foreign workers are
found, they will be repatriated to their coun-
try of origin.48 All labour legislation applies to
all who work in South Africa.

The DoL says that there have been incidences


of illegal foreign workers who have worked
for exploitative wages and in extreme cases
have not received wages but accommoda-
tion only. Such cases, that have been reported
in the media and have been investigated by
31
the Department, are not always accurate.49
between the government departments. 57
Skills Development Act 97/1998 Role-players who committed themselves to
This legislation was passed to develop the Vision have a responsibility to communi-
and improve the skills of people in the
workplace. The Act makes provision for
cate it to their members.58
the following:
q Provides a framework for the SAAPAWU states that implementation on the
development of skills of people at part of Agri SA is not necessarily effective at
work. a farm and provincial level. Agri SA has in-
q Builds these development plans into
the National Qualifications Frame-
formed SAAPAWU that the Vision will be sent
work. to the provinces to decide if they wish to ad-
q Provides for learnerships that lead here to it as Agri SA cannot force its’ provin-
to recognised occupational cial structures to adhere to the Vision.59
qualifications.
q Provides for the financing of skills
development through a levy that is
placed in a National Skills Fund. “The whole structure and the whole
organisation as far as we are concerned,
is like a bulldog that does not have teeth
to bite.”60
The tot system and alcoholism
In order to address the problem of tot sys-
tem in the Western Cape, the DoL has Agri SA responds that this is not the case.
formed an alliance with Dop Stop, trade There is an Implementation Committee at
unions and advice offices. Through this alli- national level and the policy statements of
ance, where incidences of the dop (tot) sys- Agri SA binds provincial Agri SA affiliates at
tem are pointed out to the Department, com- provincial level who have had an input into
pliance is sought.55 The Inquiry was not in- such policies.
formed of this alliance by trade unions and
government department officials in the West-
ern Cape when the issue was discussed. “So the allegation that the provincial
unions do not adhere to or do not honour
The Future those agreements is definitely not true….
We do not agree with this statement that
Vision for Labour Relations in was made by SAAPAWU.” 61 Agri SA
Agriculture spokesperson
The Vision for Labour Relations in Agriculture,
signed at the end of 2000, is a document that
was drafted by all stakeholders. The Vision Sectoral Determination
addresses labour matters within a human In December 2002, the Minister of Labour
rights framework, setting out essentially what announced a Sectoral Determination for the
is already law or will become so with the Farm Workers Sector. The determination
passing of the Sectoral Determination, and regulates issues such as minimum wages, par-
some issues falling outside of the mandate of ticulars of employment, hours of work, leave
the DoL e.g. HIV/AIDS and ABET for farm and the prohibition of child labour and forced
workers. Agri SA states that not much has labour.
happened with the implementation of the
Vision and that they are aware of only one The Sectoral Determination sets out a mini-
workshop on implementation which was mum wage to be paid depending on the geo-
held.56 The responsibility for implementation graphic area in which the farm worker works.
of the Vision lies with government and it is Depending on the geographic area, a worker
currently in its implementation phase. Issues is to be paid R650,00 or R800,00 per month
that impede implementation are institutional
32
as from 1 March 2003. This minimum wage Relevant legislation
has been determined by the employer’s abil- q Basic Conditions of Employment
ity to pay, the effect of the minimum wage Act extended to farm workers 1
on job creation and retention, the alleviation May 1993
of poverty and the cost of living. In balancing q Agricultural Labour Act 147/1993
these considerations, the DoL states that they provides right to organise to farm
are mindful that there is no transference of workers
skills in the agricultural market and where a q Unemployment Insurance Fund
farm worker loses employment there is little Act 63/2001, was extended to
likelihood of employment elsewhere in the farm workers in 1994
labour market.62 q Occupational Health and Safety
Act 85/1993
The only permissible deductions from a q Labour Relations Act (LRA) 66/
worker’s wage are for housing and food, of 1995
which only a maximum of 10% in respect of q LRA establishes the CCMA
each employee may be deducted from the q Skills Development Act 97/1998
gross wage. Housing that is provided must q Employment Equity Act 55/1998
comply with certain criteria in order for it to q Promotion of Equality and
be a permissible deduction.63 Prevention of Unfair Discrimina-
tion Act 2/2000
COSATU and SAAPAWU question the abil-
ity of the DoL to ensure that the Sectoral
Determination is complied with.64 The DoL
states that it has embarked on a specific cam-
paign to ensure that farm workers and farm-
ers are aware of their rights in terms of the
Sectoral Determination and other legisla-
tion.65 Also, the Department is in the process
of appointing a further 300 inspectors to as-
sist the current 800 inspectors who will all
be trained in the provisions of the Sectoral
Determination and will assist in its implemen-
tation.66

Relevant constitutional provisions

South African Constitution


q Section 18 Freedom of Association
q Section 22 Freedom of Trade,
Occupation and Profession
q Section 23 Labour Relations

33
34
CHAPTER 4

Safety and Security

Introduction South African Police Services (SAPS) and the


The increase in crime generally in the coun- South African National Defence Force
try has also been experienced in farming com- (SANDF) to provide clarity, explanations and
munities. Numerous steps have been taken input on actions that are being taken at a na-
at various government levels to address this tional level to address these issues.
challenge with particular attention being given
to farm attacks. Reports of farm dwellers Violent crime perpetrated against farm
being the victims of violence perpetrated by dwellers
farm owners, commandos and private secu- Perception that SAPS are biased
rity continue to be reported to various agen- The SAPS responded to this issue by reaf-
cies. The South African Police Services who firming that the value systems, policies and
are responsible for protecting farming com- training programmes emphasise that there
munities are still addressing the legacies of a must be no discrimination against anyone.1
negative stigma from the past and dealing with In their experience they have found that many
transformation issues. allegations made against police are vague and
are difficult to respond to. Where allegations
A number of safety and security issues were can be responded to, the police will investi-
raised in the provinces. The most common gate. For example, allegations of bias con-
issues from representatives of farm dwellers tained in the Human Rights Watch Report
were the continuing incidences of violence have been thoroughly investigated by the
perpetrated against farm dwellers by farm SAPS and appropriate steps, where neces-
owners, commandos and private security es- sary, have been taken.2
tablishments, the lack of service from the
police and perceptions of bias against farm Since July 2002, the SAPS began participating
dwellers when these matters are reported in initiatives by the DLA and DoJ to address
to the police. Farm owners highlighted inci- issues of perceptions and bias about rural
dences of farm attacks and the seeming in- government service providers. There are
ability of the State to effectively protect those proposals that there should be an intensive
who live in farming communities. The na- programme to train the chain of service pro-
tional hearings provided the Inquiry with the viders, such as magistrates, police and field
opportunity to invite representatives of the workers, at a local level.3

35
In terms of a pro-active approach to dealing programme called the Resource Establish-
with negative perceptions and bias, the SAPS ment Plan. In order to address shortages
have sent a generic list of complaints against there are a number of initiatives that are be-
the police to their station commissioners and ing currently embarked on. These include the
have instructed them to deal with these is- recruitment of 25 000 constables and 2 400
sues and report back.4 Since July 2002, the civilians and staff adjustments in the next
SAPS began participating in initiatives of DLA three years. By the end of the 2004/5 finan-
and DoJ to address issues of perceptions and cial year 70% of all staff will be placed at lo-
bias about rural government service provid- cal level. There are also a number of strate-
ers. There are proposals that there should gic initiatives to increase the effectiveness of
be intensive training of service providers at staff at a local level. This includes further train-
the local level.5 ing of police officials, introduction of perfor-
mance charts, continued development and
Where cases of bias come to the attention of implementation of the Sector Policing con-
the SAPS at a national level, they are tracked cept and introduction of Mobile Community
at that level to ensure that they are appro- Service Centres in rural areas.9
priately dealt with.6

“The perception that justice in our coun-


try supports the land owners and the rich
does lead to frustrations amongst the farm
dweller community and furthers the be-
lief that violence is a legitimate means to
further one’s interests and protect one’s
rights.”7 NLC spokesperson

One source of the perceptions of bias held


by farm dwellers is that despite continued
reports of illegal evictions occurring there
have been no successful prosecutions in terms
of s23 of ESTA in most provinces. The Act
does make provision for the private prosecu-
tion of a person who illegally evicts.

“Now I would submit that it is ludicrous


in the extreme to suggest that a poor farm
worker would understand the complexi-
ties or be able to appreciate the complexi-
ties of a private prosecution.” 8 LRC
spokesperson

Under-resourced police stations serving


farming communities
The SAPS provided the Inquiry with statis-
tics as at June 2002 on human and physical
resources at a local level. Shortages in re-
sources are determined through a
36
SAPS - Human and Physical Resource Shortages

Province Human Vehicles Computers

Eastern Cape -8% -10% -45%

Free State 10% 7.5% - 28%

Gauteng -17% 4% -54%

KwaZulu-Natal -14% -1% -42%

Limpopo 2% -8% -50%

Mpumalanga -16% 11% -28%

North West -12% 4% -40%

Northern Cape -27% -8% -31%

Western Cape -33% 0.8% -29%

Training in respect of ESTA, LTA and PIE accordingly.16 Agri SA does not have any for-
SAPS states that training about ESTA was mal relationships with private security
given by their Legal Services on a organisations. Whilst they cannot control
decentralised basis.10 In respect of PIE and who their members enter into security rela-
illegal invasions of land, explanatory docu- tionships with, they do warn members of the
ments were sent out to police stations in potential legal implications of using those
1998, in May 2000 and again in July 2001.11 organisations.17 There is a new regulatory
There has also been internal human rights body that will manage all private security
training within the Department to try to cre- companies in the future.18
ate a more focused human rights culture.12
Commandos
Reservists The SANDF was invited to the national hear-
Reservists assist the SAPS on a voluntary ba- ings to address general perceptions and com-
sis and work without remuneration.13 Since plaints that commandos (collectively known
May 2001, the SAPS have been in the pro- as the Army Territorial Reserve - ATR) per-
cess of recruiting a further 30 000 reservists.14 petrate human rights abuses against farm
The different categories of reservists have dwellers. The role of the commandos and
been recently updated to provide the oppor- their control and command structures were
tunity to those previously excluded from be- also explored by the Inquiry.
coming reservists. In terms of these exclu-
sions, commandos are excluded from becom- Role, function, chain of command
ing reservists due to a potential conflict of The primary role of the commandos is to de-
interest.15 fend the homeland and the rear in times of
war. The secondary function of the SANDF
Private security is to assist the civil authorities, such as the
The SAPS do not have any specific relation- SAPS and other government agencies, dur-
ships with private security organisations and ing natural disasters.19
companies. Where these bodies use illegal
methods, the SAPS state that they will react
37
There are 183 commando units located SANDF and the Departments of Justice,
around the country. They fall under the com- Welfare and Correctional Services, sit on
mand of the Regional Joint Task Force Head- NOCOC.
quarters for all operational tasks and the Chief
of the Army for purposes of staff training and This command and control remains with the
equipping.20 The direct chain of command for relevant SAPS or SANDF structures, and per-
commandos resides solely within the SANDF. sonnel only operate on instructions jointly
The moment commandos are deployed they issued.26
fall under the Chief for Joint Operations.
There are currently five regional task forces Composition
situated through the country.21 From being almost exclusively White in 1994,
the ATR personnel, currently at 60 000, now
In terms of a Presidential Minute in 1996, the comprises 42% Black members.27 An accept-
SANDF was deployed to assist the SAPS. This able level of representivity still needs to be
deployment fits in with the 25-year National attained in the leadership of the ATR.28 One
Crime Prevention Strategy. The deployment of the reasons attributed to the current lack
could thus last until 2021. However, it has of representivity is the many years it takes in
recently been decided that commandos will the army to progress through the ranks to a
withdraw from the rural areas within the next senior position and the current lack of re-
6 years.22 In terms of the Minute, a joint op- sources to equip and train people. 29 The
erational co-ordination mechanism was de- SANDF has directed recruitment drives at
veloped to co-ordinate all joint SAPS and farm workers and is willing to consider a per-
SANDF actions. In practice the SAPS must son who can read and write.30 However, they
approve all SANDF deployments and an SAPS have met with little success as many farm
member must accompany the deployment. workers do not meet the entry requirements
SANDF personnel do not have police pow- in terms of medical fitness levels and aca-
ers (they do have, like all citizens, the power demic qualifications. It has already been de-
of citizen’s arrest)23 and thus SAPS members cided that the SANDF will withdraw from
must execute the primary police functions the rural areas and therefore does not intend
during a deployment.24 There are exceptions addressing the issue.31
to this general rule such as the contingency
plans that have been formed for cases of farm Perceptions
attacks that allows for commandos to react For historical reasons the commando system
as they can be on the scene first. is perceived as White and as serving the in-
terests of White farmers. The changes in ATR
In rural areas the role of the ATR is to sup- composition is gradually changing this per-
port the SAPS to implement the RPP. Tasks ception, with 24% of commandos compris-
executed include patrols; vehicle control ing farmers and 42% of commandos being
points; the provision of safeguarding during Black. 32 The SANDF acknowledges that
roadblocks; and a first reaction force in re- there has been much negative media cover-
sponse to farm attack incidents.25 age about commandos. However, in their ex-
perience, upon investigation these allegations
In terms of organisation structures for joint are not sustained.33 For example, serious al-
operations, there is a NOCOC (National legations of assault were made against the
Operational Co-ordinating Committee), commandos in Mpumalanga. Upon investi-
based at national level with POCOCs in the gation the SANDF discovered that the per-
provinces, ACOCs in the areas and GOCOCs petrators were security company employees
on the ground. Deputy Directors-General wearing uniforms similar to the SANDF, clear-
from five departments, including the SAPS, ing squatters from the land.34 If persons pose
38
as SANDF officials, they can be charged with In response to the allegation that there is a
a criminal offence. However, the SANDF has lack of knowledge in farming communities on
run into constitutional difficulties with draft- how to lodge complaints against unlawful
ing legislation that will make wearing cam- activities of the commandos, the SANDF
ouflage uniform a criminal offence.35 state that pamphlets are distributed when
they conduct major operations.41
The SANDF redrafted their Code of Con-
duct in February 2000 and all its members Rural Safety Programme
have signed a pledge to adhere to it. All re- The SAPS has recognised that issues of safety
ported incidents of violations of the Code are in rural areas are different from those in ur-
thoroughly investigated. Public opinion sur- ban areas. To address this a process has been
veys conducted in 1999 and 2001 indicate that embarked upon which commenced in 2000
communities view the ATR positively.36 with the development of a discussion paper.
Thereafter a National Conference on Rural
Safety was held in 2001. In 2003 a Rural Vic-
“The commandos played a very strong role tims Survey will be conducted to obtain a
in the apartheid era in stabilising the coun- more accurate picture of the nature and ex-
try and from that retained a stigma of an
organisation only catering for the Whites
tent of crime in rural areas. Once this pro-
and only catering for the farmers. The cess is completed, it will inform the develop-
stigma is going along with the comman- ment of policy and guidelines.42
dos for many years and it is very difficult
to get rid of this specific issue.”37 Farm Attacks
“Unfortunately, and we do not deny it,
Farm attacks are of serious concern to Agri
there are people within the system that SA and they stated that one of the criteria
try to utilise the system for their own aims for their participation in the Inquiry was that
and wishes and they try to defy the reali- this issue would be addressed. In their view,
ties of our day, but we know who they are the SAHRC has an obligation to investigate
and we keep them under control. And we
are working very hard to change their spe-
the issue.43 Agri SA question why the rights
cific perceptions and ideas about it. And of legitimate landowners are being under-
where possible we weed them out as well mined through intimidation and violence.44
if they do not want to change specifi- They attribute the underlying causes of farm
cally.”38 attacks to crime with strong undertones of
racism and general poverty. Issues of pov-
erty and racism on farms are deflected by
The NLC again brought the attention of the drawing comparisons with squatter
Inquiry to the fact that commandos accused camps.45 Agri SA holds the belief that farm-
of assault and torture of farm dwellers are ers are being targeted.
afforded legal representation at State ex-
pense.39 In response, the SANDF says that
the State Attorney decides whether a com-
mando who is charged with a criminal offence
would be assigned legal representation at
State expense. Where legal representation is
assigned and it later transpires that the mem-
ber transgressed the SANDF regulations,
then the legal costs will be recouped.40

39
The Rural Protection Plan (RPP), sets out the Statistics
definition of a farm attack as follows: Although much public attention has been
given to farm attacks, and a number of steps
have been taken to combat the occurrence,
“Attacks on farms and small-holdings re- they still continue. Statistics supplied by Agri
fer to acts aimed at the person(s) of resi- SA indicate that during the period of the In-
dents, workers and visitors to farms and quiry; namely from 1 June 1998 onwards,
smallholdings, whether with the intent to
murder, rape, rob or to inflict bodily harm.
there were more attacks as compared to
In addition, all actions aimed at (disrupt- years prior to this date.
ing) farming activities as a commercial
concern, whether for motives related to Attacks and Murders on Farms (Agri SA)51
ideology, labour disputes, land issues, re- Year Farm Attacks Murders
venge, grievances, racist concerns or in-
timidation, should be included. (Cases
1998 769 142
related to domestic violence, drunkenness, 1999 813 144
or resulting from commonplace social in- 2000 902 142
teraction between people – often where Jun 01 461 67
victims and offenders are known to one
another – are excluded from this defini-
tion)”46
According to the SAPS, although recent sta-
tistics indicate that there has been an increase
in farm attacks, there has also been a decrease
The definition is a working definition and it is in the number of murders occurring during
immediately acknowledged that there are a these farm attacks.52
number of deficiencies and flaws in it. For
example, there is a lack of consensus over Accusations of bias and favouritism towards
what constitutes a farm and whether farm owners by the SAPS were made in the
smallholdings are incorporated. Attempts provinces due to the fact that separate sta-
have been made to amend the definition to tistics are kept on farm attacks, yet there are
the satisfaction of all role-players, but to date no separate statistics recorded on acts of vio-
these have all been unsuccessful.47 There is lence perpetrated against farm dwellers.
no such thing as a farm attack but a number
of crimes that are committed. In order to The SAPS explained that the request to keep
identify what crimes are farm attacks, inci- separate statistics on farm attacks originated
dences are discussed each week at the Thurs- at a political level. The original request came
day committee meeting which the SAPS, because of the role that farmers play as food
SANDF, DLA, DoA, Agri SA, TAU and Ac- producers and that attacks against this group
tion Stop Farm Attacks attend.48 can impact negatively on the economy of the
country. Also, farmers saw this as a deliber-
ate attack against them and believed that
“NAFU and trade union representatives there is a plan behind it. This makes it a sen-
have also been encouraged to attend these sitive issue and thus it becomes a high-risk
meetings. However, they have stopped security issue.53 Initially the request was made
coming citing a lack of human and finan- in 1997 by the State President and again in
cial resources to attend the meetings.”49 April 2001 by the late Minister Tshwete for
his Committee of Inquiry into Farm Attacks.
The SAPS keep two other separate statisti-
Human Rights Watch argues that the contin- cal databases and these are for attacks on
ued use of the term ‘farm attack’ reinforces police officers, and, escapes from police cus-
the idea that there is a military or terrorist tody. Keeping these separate databases is ex-
basis for the crimes and this affects the analy- tremely labour-intensive as they require
sis of possible solutions.50
40
greater human resource allocation and the The SAPS attributes the underlying cause of
checks on the accuracy of the information farm attacks to crime. They cannot deduce
are not as good as the computerised CAS from their statistics whether it is a valid per-
(crime administration statistics) system which ception that the number of attacks on farm-
the SAPS uses for all other crimes.54 ers is disproportionately higher than other
sectors of the community. In their experience,
Underlying causes farmers are perceived as soft targets because
Despite the many initiatives to determine the they live far apart and are naïve about their
underlying causes of farm attacks, the role- security arrangements. There are also per-
players are yet to reach consensus. Agri SA ceptions that farmers have many firearms,
and their provincial affiliates repeatedly told and have cash on the farms. This makes them
the Inquiry that farm attacks are based on popular targets. It is therefore difficult to say
hate speech perpetrated by the media and that farmers are attacked more.58
that politicians motivate people, not farm
workers, to attack farms. Agri SA does con-
cede that there is also a huge criminal ele- “So that is maybe why they are popular
targets, but it is very difficult to say in
ment and that poverty as a whole contrib- proportion there are more robberies of
utes to farm attacks.55 farms than in our residential areas, be-
cause let us face it, armed robberies on
residential premises are on the increase.
“Agri SA believes that hate speech, with a … So I would say that I think it is very
strong racial undertone directed against much on the same level that specific kind
farmers, is one of the major factors con- of crime (armed robberies).” SAPS Spokes-
tributing to the high incidences of attacks person
on farms and the murdering of farmers
and even their workers. Farmers are too
often depicted as cruel racists who assault
and evict their workers at random. This is Rural Protection Plan (RPP)59
simply not true….Agri SA is very con- The RPP was referred to in most provinces
cerned about the negative image of farm- but with differing reports as to whether it
ers portrayed by certain sectors of the was operating successfully or not. Whilst
media as well as NGOs and public offi-
cials. We believe that this may have mo-
some cited a lack of resources to carry out
tivated people to attack and murder farm- the RPP effectively, others cited a lack of co-
ers and their families.”56 Agri SA spokes- operation, or rather commitment from farm-
person ers to ensure that the Plan was effective.
Concerns were also raised about the lack of
involvement of farm workers in the imple-
The National Land Committee disputes that mentation of the Plan.
there are possible political motives for farm
attacks. In 1997, the organised agricultural commu-
nity approached the SAPS and SANDF re-
garding concerns about farm safety. From
“…there are criminals who target White these exchanges a concept was created for
farmers for robbery and this often involves
murder or violent assault and in some
combating crime on farms. 60 In October
cases farm dwellers may have been in- 1998, following a Presidential Summit, the
volved in these farm attacks or supplied RPP was formalised. The focus of the RPP is
information to the criminals but so far we “To improve the safety and security of farmers,
have not come across any cases where the their families, their workers and visitors to farms
attackers have claimed to have acted be-
cause they need land or want to drive the
and, where attacks are carried out, to track
farmers from the land.”57 NLC spokesper- down and arrest the perpetrators.”
son
41
The RPP has two basic components, that is
home and hearth protection, which is in- South African Constitution
tended to assist farming communities them- Section 12 Freedom and Security of the
Person
selves to put in place a number of safety 12(1) Everyone has the right to
measures including area-bound reaction freedom and security of the
forces which includes the commandos sup- person, which includes the right-
ported by the SAPS. 61 The RPP has been (a) not to be deprived of
criticised that it does not provide for the in- freedom arbitrarily or
without just cause;
clusion of farm workers. (b) to be free from all forms of
violence from either public or
private sources;
“The concentration on a specific
programme for farm attacks such as the
Section 14 Privacy
RPP and no specific programmes to deal
14. Everyone has the right to privacy,
with security concerns of farm workers is
which includes the right not to
viewed by COSATU as a non-acknowledg-
have -
ment of workers’ problems.”62 COSATU (a) their person or home
searched;
(b) their property searched;
The SANDF are confident that the RPP has (c) their possessions seized;
contributed towards lowering the number of
Section 35 Arrested, detained and
farm attacks in rural areas. However, in terms accused persons
of rural policing, farm workers need to be-
come involved in the RPP through the imple- Section 205 Police Service
mentation of sector policing.63 Agri SA sup- 205 (3) The objects of the police
services are to prevent, combat
ports the inclusion of farm workers in the
and investigate crime, to
RPP. 64 maintain public order, to protect
and secure the inhabitants of
Perception that government is not doing the republic and their property,
enough and to uphold and enforce the
law.

“We find it worrying that government does


not seem to have the ability to protect
the rights of legitimate landowners and
to act effectively against those who in-
fringe upon these rights.”65

This statement, which was made by Agri SA


to the Inquiry, was put to the SAPS to re-
spond to. In response, the SAPS points to the
many high level initiatives there have been to
address the issue and say that these speak
for themselves. There is a Presidential Com-
mittee addressing the issue, the Minister has
regular meetings with Agri SA and the late
Minister Tshwete appointed a Committee of
Inquiry to investigate farm attacks. As a re-
sult of all of these initiatives that have come
from a political level, the SAPS are now
criticised that they are biased in favour of farm
42
owners. 66
CHAPTER 5

Economic and Social Rights

Introduction partments and a lack of clarity as to which


The Inquiry received information on various department, DLA or DoH, is responsible for
economic and social rights such as housing, the provision of housing. There is also a con-
health care, food, water, social security and flict between the DoH, insisting that farm
education. However, issues relating to land, dwellers must own the land upon which the
tenure security, labour rights and safety and house is situated and farm owners having
security took precedence over a full ventila- various problems with this requirement.
tion of all the economic and social rights that
are protected in terms of the Constitution. Alongside the challenge of providing housing
There was a clear interface between the dif- to farm dwellers, trade unions highlighted the
ferent economic and social rights and often a plight of some farm workers who live in de-
violation of one of these rights impacted upon plorable conditions, including those who live
the enjoyment and realisation of other rights. in pig sties and those who live in shacks that
leak, with no access to sanitation or water.2
A general trend highlighted by the trade
“What we have picked up though…, is unions was that it is almost impossible for
the mutually reinforcing violations of single women to obtain employment and
rights. So, for example with the labour
rights, the difficulties that workers have
housing on farms, with housing being re-
in terms of trying to organise or trying to served for men who are still regarded as the
join unions is the fear of not just losing a traditional head of the household.3
job, but losing access to things like their
accommodation, access to electricity,
schooling, and that kind of thing.” 1 “Farmers cannot be expected to carry the
COSATU spokesperson responsibility of housing the rural poor as
we believe that housing of the poor is pri-
marily the responsibility of government.”4
Housing Agri SA
At a provincial level it was apparent that gov-
ernment has done little to provide housing
specifically for farm dwellers. Reasons attrib-
uted to this by various role-players was a lack
of co-ordination between government de-
43
The national Department of Housing (DoH) available to an individual to purchase an ex-
is responsible for the creation of policy frame- isting property or a property which is to be
works and the subsidy mechanisms that are developed in a project that the Provincial
to be implemented at a provincial level. The Housing Board has not yet approved. The
administration of the subsidy instruments is institutional subsidy is a mechanism whereby
left to the provincial departments of housing institutions such as s21 companies and non-
and more recently, the responsibility has been profit organisations undertake approved
given to the local authorities. Provincial hous- housing projects. These subsidies enable the
ing departments are responsible for deter- institutions to offer affordable rental or in-
mining the subsidies that are given to devel- stalment sale housing units to beneficiaries.7
opers and the areas that need to be
prioritised. 5 The project-linked subsidy could be used in
those instances where the farm owner gives
In response to the criticism that there is a a piece of land to the farm workers who then
lack of co-ordination between government acquire ownership of the land. The DoH
departments when it comes to the realisation points out that in this scenario the farm owner
of access to housing for farm dwellers, the would be relieved of all obligations to pro-
DoH responded by pointing out that secu- vide services to these houses.8
rity of tenure and shelter are multi-faceted
and the responsibilities span the Departments The DoH appears cautious in its approach
of Housing and Land Affairs. The main imple- to the provision of housing for farm workers
mentation problem is the issue of temporary/ and implies that the farm owner is respon-
emergency accommodation for evicted farm sible for providing housing, as it is part of a
dwellers. Another issue is that the DLA is commercial operation in the market place.
under-capacitated to enforce all aspects of
ESTA, while differing development priorities,
coupled with budgetary constraints, place “The market takes care of itself, while
municipalities in the position of having to government takes care of the poor. If this
is true, … government should be careful,
make difficult decisions in respect of settle- that in addressing the problem of farm
ment programmes. workers housing, not to be absolving farm-
ers and landowners of their responsibility
It was also pointed out that the various de- to their farm workers and farm occupi-
partments have different priorities and that ers.”9
at an implementation level these result in
challenges as each wishes to implement its
own approach to the issues at hand.6 In response to the issue raised that farm
dwellers cannot upgrade their houses, the
Housing subsidies DoH was confident that through their sub-
The DoH has three different subsidy mecha- sidy mechanisms it was possible. The institu-
nisms that could be utilised in respect of farm tional subsidy was cited as being capable of
workers housing. These are: the project- being used for this purpose. In urban areas,
linked subsidies, the individual subsidy and the Department has used this mechanism
the institutional subsidy. The project-linked successfully to upgrade hostel accommoda-
subsidy is a mechanism made available gen- tion. 10 However, housing programmes are
erally to developers who undertake approved predicated on complete co-operation of all
projects on behalf of groups or individuals in role-players. This includes the co-operation
the community. The properties are then sold of the farm owner.11 It was not spelt out by
to individuals who are approved beneficia- the Department what co-operation from the
ries. The individual subsidy is a subsidy made farm owner means. By implication though,

44
from what was stated, the farm owner has
to transfer ownership of a piece of land for “We believe that the majority of farm
worker beneficiaries and institutions in-
the housing subsidies to be accessed. This tending to develop projects for farm work-
goes to the heart of the issue that was raised ers will, however, not be able to obtain
by Agri SA. access to ownership or long-term register
tenure options.”21
Agri SA stated that the previous government
provided subsidies to farm owners for houses
to be built for farm workers.12 The current
government does not give loans to farm own- Grootboom Decision
In the Grootboom decision the Consti-
ers for farm worker housing. The criterion tutional Court demonstrated that it is
of the DoH that the farm worker must ac- the parents’ primary responsibility to
quire ownership of the piece of land upon provide shelter for their children. If they
which the house is situated, is not accept- are unable to do so, this responsibility
able to most farm owners. This creates, in is imposed upon the State.22
their view, a huge obstacle to the provision
of farm workers housing. However, they are
of the view that role-players can address the Agri-Villages
issue creatively to resolve the present diffi- The Department’s attitude towards agri-vil-
culties that farm owners have.13 lages is that they support the concept, pro-
viding that this takes place within a sustain-
Despite these differences in approach to the able environment. To this end, aspects such
provision of housing, the DoH is of the view as the economic base of the settlement, the
that it cannot be said that farm workers have locality and links to other settlements, the
no resources in acquiring shelter.14 size of the population, the environmental
capacity and the development priorities of
The DoH intends developing a policy strat- municipalities and landowners were cited as
egy specifically for farm workers housing in some of the issues that need to be consid-
2003.15 At the Inquiry it was also explained ered when assessing the sustainability of agri-
that the Department intends developing an villages.23
emergency housing policy to deal with disas-
ters, which will also address the plight of farm Housing Consumer Framework
workers who are legally evicted.16 A Housing Consumer Framework has been
developed at national level, with plans to roll
The DoH admits that not much has been it out in 2003. In terms of this Framework,
implemented on the ground in respect of much work will have to be done at a local
farm worker housing. 17 Issues raised by level and municipalities will have to become
COSATU such as gender discrimination be- involved. The Framework indicates a shift in
ing practiced in the provision of housing, do policy from providing housing as a supply
not appear to have had the opportunity to developer-led initiative, to a demand-led ini-
be addressed yet in the Department.18 It is tiative. In line with this policy shift, the pro-
difficult to establish how much housing has curement processes of the Department have
been provided to farm workers as the been structured where the focus is placed
Department’s database does not indicate on municipalities to determine where hous-
how many beneficiaries are farm workers.19 ing will be located in their constituencies.24
The DoH is of the view that the institutional
subsidy may be the best option to explore
for farm dwellers as ownership of land does
not have to be transferred.20
45
International Human Rights Health care
Instruments25 The National Department of Health
q International Covenant on Eco- (DoHealth) was requested to address issues
nomic, Social and Cultural Rights pertaining to the lack of access to adequate
(ICESCR) primary health care, the lack of health edu-
q General Comment No. 4 (Sixth cation and the lack of health facilities.
Session, 1991), UN doc. E/1992/23/
The Right to Adequate Housing Access to health care services
q General Comment No. 7 (Sixteenth Access to primary health care is recognised
Session, 1997), UN doc. E/C.12/ as a major challenge to government and it is
1997/4, Forced Evictions acknowledged that the “golden standard” of
q Habitat Agenda, Habitat 11, every person having a health facility within
Istanbul, June 1996 five kilometres is not currently realised in all
areas. Further obstacles to the realisation of
the right is the lack of affordable transport
South African Constitution in the rural areas and the operation times of
Housing clinics, which generally operate between
26 (1) Everyone has the right to have
access to adequate housing.
08h00 to 17h00, Mondays to Fridays. These
(2) The State must take reasonable facilities are not sensitive to the needs of
legislative and other measures, farming communities, which need them dur-
within its available resources, to ing weekends in order that people could at-
achieve the progressive tend the clinics during non-working hours.26
realisation of this right.
(3) No-one may be evicted from their
home, or have their home
demolished, without an order of Challenges faced by farming
court made after considering all communities in the provision of
the relevant circumstances. No health care27
legislation may permit arbitrary q Distances farm dwellers must travel
evictions. to the nearest primary health care
service.
28 (1) (c) Every child has the right to q Financial constraints and lack of
have access to basic nutrition, transport.
shelter, basic health care q Lack of access to health care
services and social services. services after hours or during
weekends and holidays.
q Employers not allowing workers to
access services during working
Legislation and Policy hours and some facilities being
q Housing Act 107/1997 closed after hours for security
q Housing Consumers Protection Mea- reasons.
sures Act 95/1998 q Telecommunications not being
readily available.
q National Norms and Standards in Re- q Lack of information to access the
spect of Permanent Residential Struc- necessary grants.
tures (came into effect on 1 April 1999) q Little or no health education on re-
contained in the Implementation productive and other health-
Manual Housing Subsidy Scheme and related matters.
Other Housing Assistance Measures,
1995
The Department faces challenges with the
staffing of rural clinics due to an exodus of
staff out of rural areas to urban areas and

46
overseas. The Department has also felt the The Department highlighted a number of
impact of losing health care professionals to challenges for the delivery of reproductive
HIV/AIDS.28 Furthermore, rural areas are per- health services:
ceived as unattractive options for most health q Lack of knowledge and lack of prompt
care workers. The DoH is currently address- medical care contributes to high ma-
ing the issue and is looking at options such ternal mortality rates.
as creating incentives for these workers.29 q Termination of pregnancy services are
Health professionals leaving universities are mostly urban-based.
in need of rural health orientation as they are q Lack of cervical cancer screening in
trained in contemporary high technology pro- some areas.
cedures, which sometimes cannot be con- q Lack of information on awareness of
ducted at rural clinics.30 It is also reconsider- genetic services, especially in relation
ing its policy approach of professionalisation to FAS.36
of medical care in South Africa which ex-
cludes many dedicated and often highly- The Department is acutely aware of the need
skilled health workers. The Department is to provide health education and acknowl-
considering training people to provide cer- edges that it has not been a priority area.37
tain basic medical services.31
International Human Rights
Instruments38
Health sector challenges in provid- q International Covenant on Economic,
ing care to farming communities32 Social and Cultural Rights (ICESR),
q Few health care workers want to
work in rural areas.
Article 12
q Lack of transport services to q General Comment No 14 (Twenty
facilitate access to health care Second Session, 2000), UN doc E/
services, especially in emergency C.12/2000/4, The Right to the Highest
situations. Attainable Standard of Health
q Mobile clinic services often do not
provide a comprehensive package
q Convention on the Elimination of All
of health care services. Forms of Discrimination Against
q Not all communities nearby Women, 1979 (CEDAW)
having health care services.
q Provision of home-based care for
the terminally ill is difficult. South African Constitution
27 (1) Everyone has the right to have
access to –
The DoHealth’s approach of strengthening (a) health care services, including
reproductive health care.
the district health care system is viewed as (2) The State must take reasonable
the best manner to address the health issues legislative and other measures,
of farming communities. 33 Within the ap- within its available resources, to
proach, the move away from the mobile clinic achieve the progressive
system in some provinces is an issue that is realisation of these rights.
(3) no-one may be refused
determined according to needs at a provin- emergency medical treatment.
cial level.34
28 (1) (c) Every child has the right to
have access to basic nutrition,
“The ideal would be to have a very good shelter, basic health care
transport system and you have health services and social services.
facilities that are adequately staffed at
various intervals and with a very good re-
ferral system.”35

47
Food
The right of access to adequate food was not South African Constitution
raised specifically at the national hearings. It 27 (1) Everyone has the right to have
access to –
was touched on by the DoE, which discussed (b) sufficient food and water.
the Primary School Nutrition Programme (4) The State must take reasonable
(PSNP) and the DSD in relation to the fast- legislative and other measures,
tracking of child support grants. within its available resources, to
achieve the progressive
realisation of these rights.
After the national hearings the Department (5) no one may be refused
of Health informed the Inquiry in written emergency medical treatment.
correspondence, that it has a Vitamin A
Supplementation Programme and that a Na- 28 (1) (c) Every child has the right to
tional Food Fortification Programme was have access to basic nutrition,
shelter, basic health care
launched in October 2002.39 services and social services.

“Children living on commercial farms are


more likely to be stunted and underweight
Legislation and Policy
than any other children. Almost one in q Green Paper on Food Security, 1999
three children on commercial farms is
stunted. One in five are underweight and Water
one in 25 displays the symptoms of wast- During the provincial hearings the main is-
ing.”40
sues raised regarding the right to access to
sufficient water was the termination of wa-
ter supplies to farm dwellers in an attempt
International Human Rights
to force them to leave the farm, and various
Instruments41
complaints about the lack of access to clean
q Universal Declaration of Human
water and adequate sanitation.
Rights, 1948, Article 25
q International Covenant on Economic,
The Department of Water Affairs and For-
Social and Cultural Rights, 1966
estry (DWAF) is responsible for the devel-
(ICESCR), Article 11
opment of policy, setting of national targets,
q General Comment No 12 (2000), UN
monitoring, support and regulation of the
doc. E/C.12/1999/5, The Right to Ad-
water sector at a national level. The Depart-
equate Food
ment is currently developing a new water
q Convention on the Rights of the Child,
services White Paper that will guide the South
1989
African Water Sector for the next eight to
q Convention on the Elimination of All
ten years. They are engaged in consultation
Forms of Discrimination Against
with, amongst others, the Department of
Women (CEDAW)1979
Agriculture and Agri SA, in the development
q International Conference on Nutri-
of this White Paper.42 During the consulta-
tion: World Declaration on Nutrition,
tion process the Department extends invita-
1992
tions to relevant role-players, looks at atten-
q Copenhagen Declaration on Social
dance registers and where parties are identi-
Development (1995)
fied as not being represented, the Depart-
q Rome Declaration on World Food
ment will invite them for bilateral processes.43
Security 1996
q International Code of Conduct on the
Human Right to Adequate Food 1997

48
Municipalities are the relevant spheres of Dirty water
government responsible for water services COSATU raised the issue again that some
delivery. Since the new municipal boundaries workers are provided with dirty water to
were effected in December 2000, all com- drink and that this can lead to health prob-
mercial farms now fall within these bound- lems.49 According to DWAF, there is cur-
aries. Thus municipalities who are respon- rently no inter-departmental structure to look
sible for ensuring access to water for all who at the quality of water that is provided to farm
live in their boundaries, are also responsible dwellers. The supply of water by municipali-
for addressing the issue of access to water ties is regulated by the Water Services Act and
for farm dwellers.44 Regulations pursuant thereto, which speci-
fies the water quality that must be provided.
In responding to the issue of the termination There is a Water Quality Institute situated
of water supplies by farm owners, the DWAF within the Department.50
informed the Inquiry of the challenges it faces
in securing an independent water supply to Emergency water
farm dwellers. A major policy obstacle for The responsibility to provide water in an
the DWAF that must be addressed is that in emergency lies with the local authority in
order to supply water services to farm dwell- whose jurisdiction the farm is situated. DWAF
ers, the Department may be investing State has a role to ensure that local authorities are
resources on private land. The landowner empowered in terms of legislation to inter-
would ultimately benefit from this investment vene, ensure that they do make interventions
should the beneficiaries leave the land.45 To and make interventions in cases where the
address this issue the Department has, in province cannot intervene, or for some rea-
various pilot projects, drawn up agreements son, is unable to assist. DWAF has intervened
with farm owners to regulate the provision in the past in desperate situations and pro-
of water services to farm dwellers. This is- vided tankers of water.51
sue will be addressed further in the White
Paper. The Department suggests that agree- The White Paper will address the issue and
ments be entered into with landowners to recommends that every municipality must
provide water to those people who reside have a rudimentary service in place in order
on their land.46 The following comment by to provide water in these emergency situa-
DWAF indicates that the Department may tions.52 Currently, there is no programme to
not be aware of Agri SA’s approach that it is address this issue.53
government’s responsibility to provide ser-
vices to farm dwellers: International Human Rights Instruments
q Universal Declaration of Human
Rights (1948), Article 25
“Farmers are employers and are respon- q International Covenant on Economic
sible for housing and related services of Social and Cultural Rights (1966), Ar-
their employees living on farms. Farmers
are therefore responsible for the provision
ticle 11
of basic water services to farm workers q Convention on the Elimination of All
and their families living on farms, a policy Forms of Discrimination Against
supported by Agri SA.”47 Women, 1979 (CEDAW)
q Convention on the Rights of the
Child, 1989
Many farm dwellers do not currently benefit q Copenhagen Declaration on Social
from the free water service policy of the Development, 1992, Commitment
DWAF who referred the issue to local mu- 2
nicipalities, which must implement the policy
through arrangements with local farm own-
49
ers.48
The request will then be considered within
South African Constitution the Department’s available budget and re-
27 (1) Everyone has the right to have
access to –
sources. 55
(b) sufficient food and water.
(2) The State must take reasonable The DoHA has10 regional directorates which
legislative and other each have a number of regional district of-
measures, within its available fices, service points and mobile units. There
resources, to achieve the
progressive realisation of these
are 132 mobile units spread through Prov-
rights. inces as follows:
q Western Cape 9
q Eastern Cape 22
Legislation and Policy q KwaZulu-Natal 12
q Water Services Act 108/ 1997 q Limpopo 20
q National Water Act 36/1998 q Mpumalanga 25
q White Paper on Water Supply and q Free State 8
Sanitation, 1994 q Gauteng 5
q Draft White Paper on Water Services, q North West 26
2002 q Northern Cape 356

Social Security These mobile units are the only current ef-
The main trends identified in the provincial fective means that the Department has to
hearings were that some members of farm- access remote rural areas.57 In 1997, the
ing communities are denied access to social agency service agreement between the
security and assistance as they are unable to DoHA and the DoJ was withdrawn due to
obtain the prerequisite birth certificates and policy considerations. According to the
identity documents from the Department of DoHA this has had an impact on their capac-
Home Affairs (DoHA) and are unable to ac- ity to render services.58
cess the grants and services provided by the
Department of Social Development (DSD). During 2002, the DoHA, in conjunction with
COSATU made a call for the introduction of the Department of Social Services, was in-
a Basic Income Grant to alleviate poverty in volved in a presidential-directed registration
farming communities.54 campaign for social services. This is a gen-
eral campaign and the Department reports
Birth certificates and identity documents that it has no special campaigns, past and
Some farm dwellers are denied access to present, for providing its services to farm
social security services and assistance because dwellers. 59
they do not have the prerequisite birth cer-
tificates and identity documents to apply for The DoHA conceded that there does appear
the various grants provided by the DSD. In to be a need for their services in farming com-
responding to this trend, the DoHA stated munities and undertook to take the issue up
broadly that there are budgetary constraints at a senior management level.60
that impede them in providing services more
widely. The Department appears to have a Despite the Inquiry having heard on a num-
general reactive approach to providing their ber of occasions about the lack of transport
services to communities and individuals that in rural areas, farm dwellers being unable to
live in outlying areas and on farms. The onus afford transport, being unable to obtain a day
seems to be on the individual or the commu- off work, not being paid on leave days and
nity to lodge a request to provide a service farmers moving away from playing a social
for consideration by the Department. services role, the DoHA made this comment
at the Inquiry:
50
q Reviewed policies.
“I would imagine that there is also trans- q Set up a system of responding to que-
port from the farming communities to ries that are sent to the national De-
their local, call it, a municipal area to do
their normal day-to-day stock up on gro-
partment.
ceries and stuff like that. And I know that q Increased collaboration with NGOs,
many farmers would assist their person- CBOs and the Departments of Home
nel to bring them to the offices where Affairs and Health.63
there are offices. So in that sense our ser-
vices also reach farming communities to
as reasonable extent.”61 Department of
Home Affairs representative “We have put up as a norm that 99% of
those (the toll-free line) queries must be
resolved within 48 hours because we know
that social assistance touches the very
Access to Department of Social Development poor and clearly, if there is not an imme-
In addressing issues of access and the lack of diate response, that has clearly disadvan-
access to social services and assistance, the taged that person, and the consequences
which we are aware of are too
Department recognises that some of the is- ghastly…”64 DSD spokesperson
sues which pertain to rural areas are not the
same as those in urban areas.62
In order to increase access to social security,
The DSD has concurrent functions with their the Department has embarked on a Social
respective provincial departments. The na- Grant Awareness Campaign which has the
tional department is responsible for policy, support of the President and Deputy Presi-
norms, standards and legislation and prov- dent. This has included a door-to-door cam-
inces are responsible for the actual render- paign, publishing booklets in all eleven offi-
ing of services. The Department has 4 focal cial languages and widespread use of the
areas in terms of its mandates: media including national television, radio sta-
q Social security; tions and newspapers.65
q Social welfare;
q Poverty relief; and In order to increase access to social welfare
q HIV/AIDS. services, the Department has embarked on
a policy and legislation review (currently look-
General major challenges that are faced by ing at children and the elderly), entered into
the Department in rendering its services in- funding agreements with NGOs and service
clude: providers that render services to farming
q Lack of knowledge by citizens of their communities and appointed development
rights. workers to assist with the delivery of services
q Equity in service provision. to farming communities. Specific progress
q Infrastructure backlogs, particularly in made in respect of farming communities in-
with technology and in rural areas. cludes extending foster care placements to
q Staff capacity problems. farming communities and creating probation
q Financial resource constraints. services programmes that include children
who are living on farms and who are in con-
In order to address these issues, the Depart- flict with the law. In order to redirect further
ment has amongst others: resources to address the needs of farming
q Increased its mobile unit service communities the Department has created ad-
points. ditional posts and is currently looking into in-
q Set up a toll-free line. centives for social service workers deployed
q Drafted approved norms and stan- in rural communities, creating development
dards.
51
centres and forming partnerships with suit- regarding this priority to ensure that that chil-
able farmers to act as referral persons for dren who are brought to their attention are
their employees in need of welfare services.66 not sent away without being guided and ad-
vised on applying for a grant.70

“We have got a coverage of around 73%


of total eligible people into the grant sys- “What has been happening in terms of
tem sitting at around 5.1 million citi- social assistance is that we found that it
zens.”67 is accessed mainly by those who are in
urban areas.”71

Despite all the developments that have oc-


curred in the Department since 1994 to trans- Access to farms
form the social security and assistance sys- There have been incidences where farmers
tem and make it more equitable. The De- have prevented Department officials from
partment acknowledges that there are still accessing farms and the police were called
many challenges that need to be addressed to assist.72 The DSD recognises the security
in respect of farming communities. Firstly, concerns of farm owners but say that the is-
there is still legislation and policy, such as leg- sue ought to be addressed. They propose
islation dealing with children and the elderly, forming partnerships with farm owners,
which must reviewed in light of the constitu- NGOs and advice offices, who could inform
tional dispensation. Secondly, the capacity the Department of those people who are not
levels of development workers vary from receiving social security assistance.
province to province and this affects the de-
livery of services. Implementation
In order to address implementation levels at
Home-based care for those infected with a provincial level and exercise an oversight
HIV/AIDS and living on farms still needs to function over the provinces, the Department
be addressed. The Department is currently has set up a MinMec structure, comprising
conducting a pilot project to establish a suit- Ministers and MECs. It is the highest policy-
able model for home-based care.68 making structure in the Department. There
are various other structures found at provin-
Accessing social grants cial levels that meet on a regular basis to look
In response to the issue that some farm dwell- at issues of compliance with national
ers cannot personally visit the offices to sub- policy.73 The Department also makes use of
mit their application forms for social grants task teams to investigate specific incidents.74
and are therefore denied access, the DSD
stated that in terms of their policy the De- The DSD acknowledges that it still has much
partment has the right to go and visit the work ahead to fully realise the right of access
applicant where he or she is unable to come to social security. The amalgamation of ra-
to the service point. Where this policy is not cially segregated departments and former
being implemented at a provincial level, indi- homeland departments in 1996 has created
viduals can report the matter on the enormous challenges and has impeded
Department’s toll-free line.69 achieving equity.75

The fast-tracking of applications on behalf of In early 2003, a Compliance Unit and Fraud
children who are eligible for grants has been Unit will be established in the Department
prioritised. There has been liaison with the to address the lack of compliance by staff with
Departments of Home Affairs and Health departmental regulations, and incidences of
fraud being committed within the Depart-
52 ment.76
The Department is of the view that a Basic Legislation and Policy
Income Grant (BIG) is not the only measure q Social Assistance Act 59/1992 and
to resolve issues of poverty and that the coun- Regulations pursuant thereto
try needs to consider a range of measures. q Child Care Act 74/1983 & Amendment
Government at cabinet level is still to take a Act 96/1996
final decision on its approach to BIG. q White Paper for Social Welfare 1997

The Department aims to have trained 1 000 Education


of its officials by the end of 2004 to address The National Department of Education was
staff capacity issues and in particular the lack requested to provide the Inquiry with further
of understanding of the basic social security information on section 14 agreements, chil-
regulations.77 dren with special needs, adult basic educa-
tion (ABET), language policy and the short-
International Human Rights Instruments age of buildings and long distances to and
q Universal Declaration of Human from public schools on farms (farm schools).
Rights (1948),
q International Covenant on Economic Section 14 agreements
Social and Cultural Rights (1966), Ar- Some provincial DoEs reported that the pro-
ticle 9,10, and 11 cess of signing a section 14 agreement with
q Convention on the Elimination of All farm owners was progressing slowly. These
Forms of Discrimination Against agreements regulate the relationship between
Women, 1979 (CEDAW) the private landowner upon whose land a
q Convention on the Rights of the public school is situated and the provincial
Child, 1989 DoE’s.
q Copenhagen Declaration on Social
Development, 1992 Thus it is not a national competency of the
q African Charter on Human and DoE to administer these agreements. The
People’s Rights (1981), Article 18 DoE has supplied a pro forma section 14
q International Labour Organisation agreement to provinces should they wish to
Convention (No. 102) (ILO) Concern- use it. Any agreement that is concluded must
ing Minimum Standards of Social Secu- comply with the Regulations pursuant to the
rity, 1952 Act. 78

South African Constitution The DoE is aware that some farm owners
27 (1) Everyone has the right to have have resisted signing the agreements. Under
access to – the previous regime farm owners had agree-
(c) social security, including, if ments that were more favourable towards
they are unable to support
themselves and their
them. Some farmers now view the new
dependents, appropriate agreements as an opportunity to benefit and
social assistance. want to charge exorbitant amounts. Some
(2) The State must take reasonable farm owners object to concluding the agree-
legislative and other ments by pointing out that one farm school
measures, within its available
resources, to achieve the
may service the education needs of three
progressive realisation of these farms in the area. As only the farm owner of
rights. the land on which the school is situated can
28 (1) (c) Every child has the right to conclude the agreement and thereby incur
have access to basic various obligations, this is viewed as unfair in
nutrition,shelter, basic health
care services and social
that the neighbouring farm owners are not
services. equally burdened with these obligations.
53
These farm owners argue that the other farm Special needs
owners should also sign the agreements. The The lack of services for children with special
DoE has met with the agricultural unions needs was raised most acutely in the West-
about these issues. ern Cape where the provincial department
indicated that there were no special
programmes to cater for children who are
South African Schools Act born with Foetal Alcohol Syndrome (FAS).
(SASA), 199679 This raised the issue of whether children with
Section 14 agreements are contracts
between the MEC (Member of Execu-
special needs are catered for within the farm
tive Council), the political head of a pro- school environment.
vincial education department and the
owner of the private property where a The Department is currently managing the
public school is, or is to be situated. The implementation of Education White Paper 6
owner of the private property may be
a church, company or a farmer. The
that sets out an inclusive framework for the
agreement is contemplated to regulate education of children with special needs. The
the relationship between the provincial Department is doing this in collaboration with
education department and the owner the provincial departments of education, the
of the private property. South African Council on Disability, teachers
In terms of section 16 of the SASA, the
unions and the Disability Desk of the
principal under the authority of the President’s Office. 81 A number of pilot
Head of Department manages a public projects are currently being conducted. The
school, whereas its governance is vested Department did not indicate whether any of
in its governing body. the pilot projects relate to children with spe-
The underlying principle of SASA is
cial needs on farm schools. However, an un-
partnership. Where consensus cannot dertaking was given by the Department that
be reached, the MEC has no other op- it will look into the situation of children with
tion but to consider the expropriation special needs who attend farm schools, with
of the land on which the school is situ- a view to addressing the issue.82
ated or to expropriate the right to use
the property for a specific time.
Adult Basic Education (ABET)
Regulations pursuant to section 14 set The Inquiry was informed of high levels of
out the minimum requirements that illiteracy in most provinces. There appeared
must be addressed in such an agree- to be a lack of ABET programmes for farm
ment.80 These include, amongst others,
the provision of education and the per-
dwellers in most provinces. In response to
formance of normal functions for a pub- this the DoE stated that there are some ABET
lic school, governance of the school, programmes in farming communities. Al-
including the relationship between the though the Department is addressing the
governing body of the school and the needs of farming communities, the current
owner of the property, access by all in-
terested parties to the property, secu-
subject matter of the ABET programmes is
rity of occupation and use of the prop- not useful to persons living on farms. To ad-
erty by the school, maintenance and dress this situation, the Department is cur-
rently running ABET pilot projects in the
improvement of school buildings and Limpopo and Eastern Cape Provinces.83
property and the supply of necessary
services, protection of the owner’s
rights in respect of the property occu-
pied, affected or used by the school.

54
Language policy in farm schools International Human Rights Instruments
The issue of education in a learner’s mother q Universal Declaration of Human
tongue was raised in some provinces. The Rights (1948),
DoE was thus requested to provide input on q International Covenant on Economic,
how this issue is dealt with from a national Social and Cultural Rights (1966), Ar-
perspective. The Department referred to its ticle 13 and 14
language policy contained in the Norms and q General Comment No 11 (20th Ses-
Standards for Language Policy in Public sion, 1999), UN doc. E/C.12/1999/4,
Schools.84 In essence, while the school gov- Plans of Action for Primary Education
erning bodies are vested with the power to q General Comment No 13 ( 21st Ses-
choose the language of teaching in a school, sion, 1999), UN doc. E/C.12/1999/10,
this should be done within the context of The Right to Education
promoting multilingualism. A learner can re- q Convention on the Elimination of All
quest the desired language as a medium of Forms of Discrimination Against
instruction on application to a particular Women, 1979 (CEDAW)
school. Where the language is not available q Convention on the Rights of the
at a particular school then the request can Child, 1989
be forwarded to the provincial education
department to deal with.85
South African Constitution
Shortage of buildings and distances to and Section 29 (1) Everyone has the right –
(a) to a basic education,
from schools including adult basic
Provincial departments are in the process of education; and
merging and closing under-utilised public (b) to further education,
schools on farms and are investigating the which the State,
possibility of providing hostel accommoda- through reasonable
measures,must
tion to those children who must travel long make progressively
distances. The DoE states that this consoli- available and
dation of schools will improve the quality of accessible.
education, as these larger class groups will (2) Everyone has the right to
receive more resources. In order to assist receive education in the
official language or
learners with their transport needs, some languages of their choice
provinces use scholar transport and the De- in public educational
partment of Transport is also in the process institutions where the
of providing learners in rural areas with bi- education is reasonably
cycles.86 practicable. In order to
ensure the effective
access to, and
In response to information received by the implementation of, this
Inquiry of other government departments ex- right, the State must
periencing building shortages in servicing consider all reasonable
farming communities, the DoE stated that education alternatives,
including single medium
they would be willing to discuss arrangements schools, taking into
whereby their buildings could be shared. account –
(a) equity;
The Department referred issues of non-at- (b) practicability; and
tendance of children at school, unannounced (c) the need to redress the
results of past racially
inspections of schools, under-educated teach- discriminatory laws and
ers and the location of schools next to chemi- practices.
cal storage plants to the provincial depart-
ments as the issues fall within the provincial Continued on page 56 55
sphere of competency.
(3) Everyone has the right to
establish and maintain, at
their own expense,
independent institutions
that –
(a) do not discriminate on the
basis of race;
(b) are registered with the
State; and
(c) maintain standards that
are not inferior to
standards at comparable
public educational
institutions.
(4) subsection (3) does not
preclude State subsidies
for independent educational
institutions.

Legislation and Policy Documents


q South African Schools Act 84/
1996
q Employment of Educators Act
q National Education Policy Act
27/1996
q Norms and Standards regarding
Language Policy, Government
Notice No 383, vol. 17977, 14
July 1997

56