Provision of Legal Services to Farm Dwellers Tshililo Manenzhe, Committees 07 October 2009 1

“At the core of new policy on land reform lay a vision to transform South African society into a society based on democratic values, social justice and fundamental human rights” DLA, 2009 2

Constitution Framework for tenure security Section 25 and 26 (3) of the Bill of Rights in the Constitution guarantee and protect property and housing rights for all South Africans Section 25 (6) puts obligations on the state to enact measures that provide legally insecure tenure to persons whose tenure insecure as a result of past discriminatory laws Section 26 (3) “No one may be evicted from their home or have their home demolished without an order of court made after considering all relevant circumstances.” 3

Legal Framework (Farm Dweller) Land Reform (Labour Tenant) Act (No. 3 of 1996) ‘LTA’ Protects labour tenants exercising their right in land and provides for them to acquire land to work and reside on permanently Extension of Security of Tenure Act (62 of 1997) ‘ESTA’ Protects people and provides for procedures for eviction It gives right to occupiers who have been on the land after 4 February 1997 (permitted by the owner/person in charge) with inalienable rights to reside on the land Facilitate long term security of tenure for occupiers Prevention of Illegal Eviction and Occupation of Land Act (No 19 of 1998) Provides for the prohibition of unlawful eviction, lay out procedures for eviction of unlawful occupiers 4

Implementation challenges… Incidences of evictions and human rights abuses of farm dwellers still prevalent on farms – Nkuzi Development Association & Social Surveys (2005) found that almost 1 million people were evicted from farms between 1994 and 2005. Lack of awareness on the rights of farm dwellers; organized agriculture - lack of information on the side of the land owners. Lack of capacity to enforce the legislation, e.g. failure to open criminal cases in cases of illegal evictions (collusion between the owners & police) 5

Implementation challenges… Weaknesses in coordination between DRDLR (DLA) and other govt. departments, e.g. municipalities The interconnectedness of tenure and labour rights The plight of women on farm (see p 23: noteworthy cases) Constructive eviction, i.e. farm dwellers denied access to water and grazing rights, impoundment of livestock, denied right to family and receiving visitors, cultural and religious practices etc. Lack of legal representation of the farm dwellers poses challenges to the realization of an ideal of better life for farm dwellers/workers 6

Implementation challenges… ii The Nkuzi Development Association judgement (case LCC 10/01), found that indigent farm dwellers whose tenure is under threat are entitled to legal representation and the government has an obligation to ensure that this right is fulfilled. 7

Legal Services Project (LSP) Accessibility and costs of legal services for the farm dwellers not affordable to the poor. Unequal power relations on farms (workers and dwellers can not afford the lawyers while landowners can) The objectives of the LSP: To facilitate the provision of specialized legal services to communities and individuals facing the violation of their land rights and livelihoods (through evictions or the threats of eviction); To promote the rule of law and strengthen democracy; To build a cadre of committed human rights lawyers who will specialize in this area of the law. 8

Services Legal Services Project Court litigation Land Rights Management Facility Manage the mediation panel (mediation in the context of land tenure reform) 9

Panellists & Case referral stats Province Panelists Eastern Cape 11 Free State 4 Limpopo 2 Gauteng 24 North West 3 Mpumalanga 9 Kwazulu-Natal 25 Western Cape 18 Northern Cape Total 100 Cases 9 116 12 27 33 54 84 63 2 400 10

Statistics (LSP): 01/2008 – 05/2009 TOTAL 400 79 321 35 Eastern Cape 9 Cases Finalized Pending in favor of occupiers Settled thru’ mediation against occupier Voluntary left farms Eastern Cape 9 2 7 1 Free state 116 39 77 15 4 3 Limpopo 12 5 North West 27 20 Mpumalan ga 33 32 KZN 54 49 Western Cape 84 8 76 63 51 6 Northern cape TOTAL 400 79 321 35 11

Some of the Trends (Annual Report) 80% of the 400 disputes are evictions; The remainder comprises threats of evictions, impounding of livestock, burial rights and grazing rights Evictions involving labour tenants, mostly common in the KZN Settlement outcomes mainly involve monetary compensation, do not consider development options which allow people to remain on land e.g. Section 4 of ESTA. Some benefits from mediation of cases 12

Questions LRMF is a three year project; Strategy beyond its term? Public awareness of the project (rural and farm dwellers)? Mismatch of the number of cases and panellists in provinces? Land Rights Management Facility focuses on Evictions monitoring (Call centre toll free number: 0800 007 095). A report from the department says monitoring of evictions happens at district level the question? Budgetary constraints? - budgets is a limitation to the success of the project What happens when people are evicted; Where do they go? No planned settlements for farm dwellers – p.23 Section 4 implementation (developmental), - access to land Access to graves and burials by people not living on farms? 13

Going forward… Tighten the legislation (tenure and labour rights) Programme of information dissemination and enforcement Sustainable farm dweller settlements - both on farm and off farm (based on needs of the beneficiaries) 14