On the farms

Farmworkers and dwellers

In 2011:

• 65.1% of employed farm dwellers earned R1 600 or less per month;
• 17.2% earned between R1 601 and R3 200 per month;
• 2.5% earned more than R25 600 per month. (ILO. 2015).

Since 1994, farmworkers have not universally benefited from the raft of legislation designed to improve living and working conditions. Laws that have been passed have sometimes had adverse consequences, especially in the global context of globalisation, deregulation, mechanisation and now the fourth industrial revolution.

Recent research highlights that the combination of economic trends and a persistent policy vacuum on farmworker issues have created “a perfect storm”. The three spheres of government appear to be pulling in different directions on the farmworker question. Departments with responsibilities to improve conditions and protect workers’ rights on farms lack agreed strategy and common programmes.

A short history of farm labour

Farm labour in South Africa has a long and troubled history.

The origins of farm labour in South Africa

The first farm labourers were slaves in the Cape Colony and over the course of almost two centuries of slave-holding, enslaved people came to constitute the majority of the population of the Cape Colony, numbering more than 60 000 people (Ross, R. 1999).

Slavery was legally abolished in 1834, but all slaves were then apprenticed to their masters for six years. Many of their descendants continued working on farms down the generations.

Colonial expansion and the Land Acts

Rapid colonial expansion in the 19th century resulted in the demarcation of farms and registration of titles on land previously occupied and used by Africans. In 1913, the Natives Land Act prohibited Africans from acquiring land outside certain scheduled areas.

For a long time after the passing of the 1913 Land Act the majority of people living on white-owned land were black. These people tried to hold onto their land in different ways – as cash tenants, as sharecroppers and as labour tenants.

It has been argued that the Natives Land Act “did not have the effect of confining the rural Native population to the scheduled areas, nor was this intended. It was indeed, specifically laid down … to cause Native tenants to become in name at least, labourers and labour tenants” (van der Horst, S. 1942). The Land Act, together with the Native Service Contract Act (1932), had the effect of progressively forcing Africans who remained on the land now owned by others to become farm labourers.

In addition to a range of measures to force Africans into the labour market, colonial authorities also sought to address labour shortages through recruitment of foreign indentured labour. From 1860-1911, the Colony of Natal imported more than 150 000 Indians to work primarily on the sugar plantations. By 1936, more than a third of the African population (37%) was still living on farms (45% were in the reserves, and 17% in towns) (Beinart, W. 1994). Throughout the first half of the twentieth century, the number of black people on rural land owned by whites increased rapidly.

Labour-tenant tenure relations persisted in Mpumalanga and KwaZulu-Natal despite apartheid era regulation which sought to do away with it. (See below).

Trends in South African agriculture 1948 – 1994

Following World War 2 there was a move by landowners to mechanise agriculture. The table below indicates the rapid increase in the use of tractors for land preparation and harvesting.

Source: Houghton, D. 1976.

However the degree of mechanisation did not immediately result in the loss of jobs. Tractor tillage helped land owners to expand the area under production, which meant that initially farmers required more labour for those tasks which could not be mechanised.

Over time, however, the uptake of mechanised land preparation and combine harvesting technologies contributed to the restructuring of the agricultural labour force. This was particularly marked in the grain sector: in 1968, 16% of maize was harvested mechanically; by 1977, combine harvesters accounted for 81% of the crop in the “maize triangle” (the main maize producing provinces), resulting in labour shedding (Vink, N and Kirsten, J. 2000).

By the 1980s the majority of farmers drew the bulk of their labour on a seasonal basis from neighbouring reserves, urban areas and even schools (Schirmer, S. 2004). Between 1970 and 1990, the number of people employed in the agricultural sector dropped from 1.6 to 1.2 million. Between 1985 and 1996, 200 000 regular employees lost their jobs along with another 200 000 seasonal and casual workers (van Zyl, J. et al., 2001).

It has been estimated that there were approximately 4.3 million black Africans living on white farms in 1984 and that between 1985 and 1995 more than three quarters of a million people were evicted or displaced from farms throughout South Africa (Wegerif, M. et al., 2005).

Deregulation of agriculture and the first decade of democracy

State expenditure on agriculture began to decline in the mid 1980s. Between 1987 and 1993, budgetary allocations to the white commercial farming sector were halved.

South Africa’s admission into the General Agreement on Tariffs and Trade (GATT) in 1993 accelerated the economic deregulation and liberalisation of agriculture.

South African agriculture now operates under very different circumstances… Since 1994, South African agriculture has moved from being heavily protected by state subsidies and tariff barriers to being exposed to global competition… [in which] South African subsidies are now among the lowest in the world. (Atkinson, D. 2007).

These processes brought about deep structural changes in the sector. Large scale intensive farms dominated, focusing on the production of high-value products for export, as opposed to low-value, high-volume commodities for domestic markets (WWF. 2009.).

By 2002 just 673 farms (1.6% of the total number of commercial farms) produced a third of total gross farm income, and 1 348 farms (5% of the total) produced more than half of total gross farm income (Vink, N. & Van Rooyen, J. 2009).

Farmworkers still remained unprotected by any form of central labour legislation by the early 1990s. Employment contracts with farmers were governed by common law, so farmers could retrench and evict farmworkers at will.

Legislation in the first decade of democracy

The first decade of democracy in South Africa saw the introduction of new policy and legislation to regulate labour relations and conditions of employment, address land reform, housing and tenure security. These included:

• the Labour Relations Act (No. 66 of 1995);
• the Basic Conditions of Employment Act (No. 75 of 1997);
• the Unemployment Insurance Act (No. 63 of 2001);
• The Employment Equity Act (No. 55 of 1998);
• The Land Reform (Labour Tenants) Act (No. 3 of 1996);
• The Extension of Security of Tenure Act (No. 62 of 1997);
• The Housing Act (No. 107 of 1997). (ILO. 2015).

While new policies and laws aimed to improve the lives of farmworkers and secure their rights, the process of re-regulation had many unintended consequences.

Policies to raise worker wages and protect tenure rights were introduced at the same time as producers that were seeking to access highly competitive export markets faced expanded compliance responsibilities. The slashing of state support for agriculture left many producers with little alternative but to cut costs. In this context, new policies and laws:

• created disincentives for commercial producers to provide and maintain on-farm housing;
• contributed to the displacement/eviction of low skilled workers;
• accelerated the casualisation and externalization of large segments of the agricultural workforce.

The situation today

Contemporary trends impacting on agricultural employment

In September 2018, a total of 9.6 million people were unemployed across South Africa. In the first quarter of 2018 outputs from agriculture, forestry and fishing declined by 24.2%, followed by an even steeper fall in the second quarter of 29.2% — predominantly a consequence of crippling drought. This marked the fall of the South African economy into recession, accompanied by very high youth unemployment rates.

At the same time, new technologies combine to shape the so-called “fourth industrial revolution”. Artificial intelligence, machine learning and satellite-enabled precision farming are rapidly restructuring the world of work, creating enormous opportunities as well as significant threats. Global trends in employment indicate a sustained decline in opportunities for low-skill employment. Despite the risks that new technologies will be labour-replacing, there are also arguments that new tech can be labour-enhancing if introduced correctly.

Living and working conditions for farmworkers

The Extension of Security of Tenure Act (No. 62 of 1997) was passed to provide improved tenure security for farmworkers. The Act also aimed to provide farm dwellers with subsidies to access land for settlement and livelihoods support.

Perspectives from the HLP report on ESTA

The Motlanthe High Level Panel report found that the Act has been poorly implemented and that landowners have found ways to sidestep ESTA provisions. Farmworkers’ access to housing on farms remains conditional on their employment. Losing a job is often a prelude to eviction and homelessness. Many displaced workers have no alternative but to enter informal settlements in small rural towns where local municipalities are already struggling to address housing and service backlogs.

Other perspectives on farmworkers

In addition it has been noted that:

• apartheid era subsidies and tax incentives designed to encourage owners to invest in improved living conditions and social infrastructure on farms were withdrawn without effective alternatives being introduced;
• the setting of standards for farmworker housing on farms remains fragmented and lacks oversight;
• on-farm hostels for seasonal workers remain largely unregulated;
• the overwhelming majority of farmworkers are not registered on the housing demand database which is required to be eligible for a housing subsidy;
• there is currently no coherent national policy on farm worker housing the Farm Residents’ Subsidy introduced as part of the National Housing Code has failed to attract a single subsidy application.

These factors have led to strained worker/employer relations in the farming sector. This was evident in the 2012 farm strikes. Wage demands resulted in the subsequent promulgation of a 30% increase in the minimum wage. However it has been argued that this increase also has had unintended consequences for farmworkers including job losses, monetisation of benefits and reduced working hours.

So what can be done?

A range of recommendations have been put forward. These include:

• the strengthening of intergovernmental relations and the meaningful engagement of organised labour, worker formations, agriculture and civil society on matters affecting farmworkers;
• the joint formulation of practical alternatives to overhaul current farmworker housing and services policy, and provide tax rebates and rates relief for investment in on and off-farm housing options which provide long term tenure security;
• the mandatory inclusion of farmer worker housing and services within the housing chapter of municipal integrated development plans, the piloting of public private partnership options for the provision of off-farm worker housing with secure tenure;
• the review of ESTA Section 4 provisions and proposed tenure grants in the ESTA Amendment Bill (signed into law in November, 2018)  as a source of housing finance which could also address suitable alternative accommodation and provision of on-farm retirement housing;
• The reinvestment of a portion of the excise tax levied on wines and spitits to ensure improved iving and working conditions for farm workers and dwellers.

An ESTA Amendment Bill is due to come into effect on 1 April 2024. Key provisions are reported to include:

An expanded definition of farm workers’ families and dependents :

• The Act will further protect farm workers and dwellers’ families from evictions.  It has expanded and clarified the definition of farm workers and dwellers’ relatives to consist of spouses (including unregistered and customary), children (biological and adopted), grandchildren, parents and grandparents.  This is critical as their rights to live on the farms will now be protected as dependents of farm workers and dwellers.

Rights to visit and maintain graves:

• Relatives have the right to erect, maintain and visit relatives’ graves on farms even if they no longer reside on the farm.  Reasonable access must be provided by the farm owner.

Evictions and legal assistance

• Evictions can only take place if:
  • The persons being evicted were present and legally represented at that court hearing.
  • Government is to provide free legal representation for those being evicted.
  • Mediation should have been attempted first before proceeding to eviction.
  • The court should have been convinced that mediation will not be able to resolve the matter.

Establishment of a Land Rights Management Board and Committees:

• The Bill envisages that these structures will oversee conflict and dispute resolution processes, help drive land reform efforts and include representatives of affected stakeholders.

While the Bill includes these new provisions, the implementation of the Act to date has been very weak and highly contested. It is unclear at present how these new provisions will be enabled as past budgets in support of ESTA implementation have been negligible.

Labour tenants

Labour tenancy is at the heart of struggles for land and tenure security which have extended for more than a century. The Land Reform Labour Tenants Act (No. 3 of 1996) seeks to protect the rights of labour tenants living on land owned by others but who have, or had, the right to use cropping or grazing land on a farm in exchange for their labour. Most labour tenants are found in KwaZulu–Natal, Mpumalanga and Limpopo provinces.

The origins and evolution of labour tenancy

As colonial control extended over South Africa in the 1800s, settlers demarcated farms and Roman Dutch property law was extended over much land which Africans had occupied for generations. Those who had enjoyed ownership in terms of customary law retained occupancy but lost control over their land.

They were forced to comprehend how a piece of paper in the form of a title deed lodged in some distant bureaucratic office could deprive them of the land that they were born on, and where their ancestors were buried. – (Cowling, M. et al. 2017).

Their rights were diminished to those of occupiers, whose continuing access to and use of the land was at discretion of the new owners with registered title.

….by 1913, Africans had been effectively dispossessed of their de facto ownership. Those who wanted to access productive land were compelled to enter labour tenancy contracts. The contracts involved the patriarchal head of house entering agreements with white landowners to provide the labour of his children and his wives for free, in return for which he was provided land to build a home on, fields to plant crops on and grazing land for livestock. When farmers argue today that they make an important contribution to the country’s economy, that food security for the growing cities depends on them, it is fitting to recall that the unpaid labour of children and women is inextricably woven into, and is the bedrock of what is today “the farm”. – Donna Hornby

Labour tenants retained their rights to stay on the farm and to graze and cultivate a portion of land in exchange for providing mostly free labour to the registered owners.

Over the years the state made numerous attempts to restrict and then abolish labour tenancy so as to transform labour tenants into wage labourers with no rights in land. However these were unsuccessful because labour tenancy was perceived as providing benefits to farmers — particularly those who had yet to transition to more mechanised and labour-lean farming systems.

As state support for labour tenancy was withdrawn there was nothing in law to regulate relations between owners and tenants. This placed tenants at risk of having their historical rights diluted or of being evicted from their land.

It was estimated that by the end of the 1980s, there were around half a million individuals operating within some sort of labour tenant system, “with some form of occasional wages in light of the official illegality of the system” (Cowling. M. et al. 2017: 5)

Post-apartheid legislation and its impact

Land Reform Labour Tenants Act (No. 3 of 1996)

The Land Reform Labour Tenants Act (No. 3 of 1996) was passed to protect the occupational and land use rights of labour tenants as they existed on and after 2 June 1995.

Definition of a labour tenant

The Act provides a complex definition of a labour tenant and its interpretation has since been the subject of legal dispute. Section (xi) states:

“labour tenant” means a person

(a) who is residing or has the right to reside on a farm;

(b) who has or has had the right to use cropping or grazing land on the farm, referred to in paragraph (a), or another farm of the owner, and in consideration of such right provides or has provided labour to the owner or lessee; and

(c) whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such farm or another farm of the owner, and in consideration of such right provided or provides labour to the owner or lessee of such or such other farm, including a person who has been appointed a successor to a labour tenant in accordance with the provisions of section 3(4) and (5), but excluding a farmworker.

In trying to resolve labour tenant cases it has been disputed whether all three subsections of the definition must apply simultaneously, as this would exclude all first generation labour tenants whose grandparents did not reside on the farm.

Likewise, any person otherwise qualifying as a labour tenant, but who had subsequently been paid a wage as a farmworker could also be disqualified in terms of the Act. This ambiguity encouraged landowners to make payments to convert tenants into wage workers so as to undermine the possibility of labour tenant claims on the property.

To further complicate matters, there are cases of conflicting and overlapping labour tenant and restitution claims on the same property. In practice, restitution claims of those forcibly removed in the past have tended to be given priority to the detriment of those labour tenant claimants who still reside on the land. This creates an impossible situation and heightens the possibility of conflict between restitution and labour tenant claimants. Research submitted to the HLP argued that labour tenant claims should be given precedence.

Labour tenants and evictions: implementation of the LTA

Despite the Act containing measures to prevent eviction of labour tenants and to criminalise owners guilty of illegal eviction, there is little evidence that the Act has been effective in preventing eviction. This in part is due to the ambiguities in the LTA definition where labour tenants may be passed off as farmworkers.

A person who has narrowly missed out on being defined as a labour tenant could end up simultaneously losing their job, and would also render him or herself liable to be evicted from the only place that they can call home. The law as it currently stands does nothing to offer any form of protection in such circumstances. – (Cowling, M. et al 2017: 14).

Chapter 3 of the LTA enabled labour tenants to apply to obtain ownership of land where they could show historical use and occupation rights. The deadline for these applications closed on 31 March 2001.

Some 20 324 applications were lodged by the deadline. But since then very few claims have been processed or settled. The Act has a fatal flaw in that it placed the Department at the centre of the claims process. Section 17 of the Act requires that any application for the acquisition of land and servitudes (to provide access to water, rights of way, etc) had to be lodged with the Director General. The drafters of the Act assumed that the Department would have adequate capacity to process these applications which was not the case. The failure to respond has meant that “in labour tenant litigation both the labour tenant and the landowner can be held to ransom by the Director-General, whose non-compliance results in a breakdown of the entire process” (Cowling, M. et al. 2017: 15).

The Department of Land Affairs failed to allocate the necessary staff to implement the Act and process the claims. Institutional incapacity has meant that thousands of labour tenant claims vanished without trace. In the seventeen years which has passed since claims were submitted, many of the labour tenant claimants have died. The Department unilaterally sought to address some labour tenant claims via the redistribution programme.

Perspectives from the HLP report on the LTA

A review of the implementation of the LTA commissioned for the High Level Panel found that there have been significant problems in implementing the Act.

Progress has been stalled by the conflictual nature of court proceedings. The report confirmed the failure to allocate adequate resources for implementation. Despite there being an emphasis on alternative dispute resolution methods to settle labour tenant claims (similar to conciliation processes to address disputes in terms of the Labour Relations Act) this was not the approach in practice.

AFRA class action

The failure of the DRDLR to carry out its constitutional mandate has been the subject of a class action brought the Association for Rural Advancement (AFRA) – a long established land sector NGO. On 8 December 2016, Judge AJ Ncube ruled that the Department was in breach of its constitutional obligations and ordered that a Special Master of Labour Tenants be appointed to process claims. The judgement required the Special Master to report to the Court on progress.

A special master for labor tenants is an external individual with relevant expertise appointed by the court. Their primary role is to assist the Department of Rural Development and Land Reform in devising a plan to process land claims submitted by labour tenants. This appointment comes after the Constitutional Court judgment in the case of Bhekindlela Mwelase and others vs. Department of Rural Development in August 2019. The court reinstated the Land Claims Court order from 2016, which mandated the appointment of a special master due to the government’s failure to fully implement the Land Reform (Labour Tenants) Act.

Here are the key responsibilities and functions of the special master:

1. Agent of the Court: The special master acts as an agent of the court. Their primary task is to assist the court in achieving the ultimate remedial goal: ensuring full implementation of the Land Reform Labour Tenant Act.
2. Mediation and Problem-Solving: The special master interacts with all relevant parties, including the court, the Department, and labor tenants. They mediate between these parties to avoid adversarial litigation and time wastage. Their focus is on achieving remedies and reporting progress to the court.
3. Additional Assistance: If necessary, the special master can approach the court for additional assistance.

The current situation

In April 2023 Siya Sithole, programme manager for AFRA, was reported as saying that they were hopeful that things will get better for land tenant claimants.

“In the last two financial years through this national programme, led by the national department supervised by the Special Master, we have seen faster processing of these claims,” Sithole says.

“We now have the data to monitor the situation,” says Sithole. Through quarterly meetings with the Special Master and the department, all parties are able to come to the table and ensure that the process is transparent.

Despite this optimism transfer of land to former labour tenants has remained slow. According to the DALRRD Annual Report 2022-2023 a total of 5 270 ha of land was acquired for farm dwellers during the reporting period. The Special Master of Labour Tenants has guided the department on claims that are to be settled using new criteria. In this ‘adaptive phase’ settling the labour tenants’ claims remained slow. However DALRRD states that ” with new measures in place, it is expected that this work will significantly improve in the 2023/2024 financial year.”

The DALRRD performance plan 2023/4 also highlights the ongoing failure of the Department to effectively address labour tenant claims. It undertakes to create permanent capacity within the Department through the ‘fit for purpose structure process’.