/ 18 July 2017

​ConCourt falls short of farm dweller Act’s aims

Hard labour: Poorly paid workers in the Cape winelands would benefit from the minimum wage
These workers could see double-digit increases in their minimum wage


The Extension of Security of Tenure Act (Esta) was adopted to protect that most vulnerable class, the farm dweller. The Act recognises that their rights to live on commercial farmlands are precarious. It seeks to promote long-term security of tenure. Eviction, if it happens, must be just, equitable and accompanied by the provision of “suitable alternative accommodation”.

But these lofty aims have not been achieved.

Still Searching for Security, a report by Nkuzi Development Association and Social Surveys Africa, found that at least one million farmworkers have been evicted or displaced from commercial farmlands since the end of apartheid. Only 1% of these evictions or displacements comes after any kind of legal process.

This is, in part, because, for all its emphasis on fairness and social protection, Esta is a complex piece of legislation, which goes against the grain of traditional property relationships.

These relationships dictate that owners are entitled to control their land and that, if an owner wants an occupier out, sooner or later he gets his way — whether or not the occupier has anywhere else to go, and whatever the social upheaval caused by an eviction.

The courts, whose job it is to give meaning to Esta, have often struggled to break free of these presumptions. They have not always given the most expansive, pro-poor, pro-farm dweller meaning to the legislation.

Overall, the Constitutional Court’s Esta jurisprudence is a refreshing exception. In a series of sensitive and groundbreaking decisions, the court has confirmed that the termination of a farmworker’s right of residence must be fair in all the circumstances, not just authorised by contract; it has affirmed and protected the right to family life for farm dwellers; it has affirmed the rights of women on farms by holding that they will generally have rights of occupation on farms that are separate from and independent of those of their husbands; and it has acted to protect farm dwellers who have been displaced while they are challenging eviction orders on appeal.

This positive record makes the Constitutional Court’s recent decision in Baron vs Claytile difficult to understand. In this case a group of about 10 farm dwellers were evicted from a farm in the Western Cape, on which they had resided for many years.

At some point, almost all the occupiers had been employed by the current owner of the farm — a brick manufacturing company called Claytile. But the occupiers’ residence on the land, for the most part, predated and was independent of their employment by Claytile.

Between 2006 and 2011, those of the occupiers who had been employed with Claytile were dismissed. Yet they remained in occupation of their homes on the farm. In 2013, Claytile brought proceedings for their eviction. In 2014, the magistrate’s court ordered their eviction, without the provision of alternative accommodation.

The case eventually made its way to the Constitutional Court. Relying on a long line of cases, the occupiers of the farm argued that they should not be evicted from their homes of well over a decade if that meant they would be homeless as a result.

No doubt spurred into action by the Constitutional Court’s decision to hear the Claytile occupiers’ case, the City of Cape Town, whose responsibility it is to house those under threat of eviction, made an offer to accommodate the Claytile occupiers at an emergency housing facility at Wolwerivier, more than 30km from the Claytile property. That offer was rejected, on the basis that relocation over a long distance would cause prejudice to the occupiers’ access to employment and their children’s access to school.

The Constitutional Court nonetheless ordered the Claytile occupiers’ eviction on the basis that the offer of the Wolwerivier accommodation was “reasonable” within the meaning of section 26 (2) of the Constitution, and that the occupiers had failed to put up evidence substantiating their claim that relocating to Wolwerivier would cause them substantial hardship.

In reaching this decision, the Constitutional Court gave little consideration to one of the most important provisions of Esta, which is its definition of “suitable alternative accommodation”. In light of the particular vulnerabilities of farmworkers, Esta provides that alternative accommodation provided after an eviction must meet stringent standards.

It must be “overall not less favourable” than the accommodation from which the occupiers stand to be evicted. In assessing whether this standard has been met, a court must have regard to the “reasonable needs and requirements of all the occupiers”, the occupiers’ joint earning abilities, and the occupiers’ needs to reside “in proximity to opportunities for employment or other economic activities”.

This is an exacting test. But the Constitutional Court made little of it, even though the occupiers had raised a complaint that indicated that the City of Cape Town’s offer might not be sufficient to meet it. Instead, the court fell back on the landowner’s right to exclusive possession of its property (a right Esta is expressly meant to limit, unless suitable alternative accommodation is available), and the state’s duty to provide accommodation that is “reasonable” in terms of the Constitution (a duty Esta clearly takes far further with its definition of “suitable alternative accommodation”).

On the one hand, the Constitutional Court’s judgment in Claytile is a welcome reaffirmation of the rule that evictions should not lead to homelessness. On the other, the decision is less rosy for farm dwellers who might in future want to take full advantage of Esta’s definition of suitable alternative accommodation, and whose wellbeing and livelihoods may be placed at risk by a distant relocation.

In failing to deploy the text of the statute, the Constitutional Court decided that near enough is good enough. But that is seldom true for poor and vulnerable people, whose lives often depend on a delicate, geographically particularised network of jobs and social services.

The point of Esta is to recognise and correct for the social and economic vulnerabilities that farm dwellers face. It is meant to take the precariousness and fragility of their lives seriously, to protect their tenure, and to preserve their well-being when an eviction and relocation is unavoidable. But Esta is itself a fragile piece of legislation. The Constitutional Court’s decision in Claytile is a missed opportunity to enhance Esta’s usefulness as a tool that can enable farm dwellers to take control of their lives.

Too often, South Africa’s economy and society require farm dwellers to cope with hardships imposed on them from elsewhere. It would be a pity if the law did so as well.

Stuart Wilson is the executive director of the Socio-Economic Rights Institute of South Africa.