Tenure Security and Farmland: Will Recent Policy and Legislative Developments Improve the Plight of Rural Dwellers?

• Jurisdiction: South Africa
• Author: Priviledge Dhliwayo
• Date: 16 August 2019
• Pages: 143-159
• Published date: 16 August 2019

143

TENURE SECURITY AND FARMLAND:

WILL RECENT POLICY AND LEGISLATIVE

DEVELOPMENTS IMPROVE THE PLIGHT OF

RURAL DWELLERS?

Priviledge Dhliwayo

LLB LLM

LLD Candidate, Stellenbosch University*

1 Introduction

Although policy1 and legislat ive2 measures were draf ted and promulgated

post 1994 to improve the land tenure system , tenure insecu rity remains h igh

– especially on white-ow ned commercial farmland.3 Overall, t his has serious

implications for farm dwellers’ livelihood. The re are various shortcomings in

the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) and the Land

Reform (Labour Tenants) Act 3 of 1996 (“LTA”), which affect rural dwellers

generally, not only those actually residi ng on farmland.4 T he loopholes in

tenure secur ity legislation, poor implementation of legislation as well as

insufcient land ad ministration syste ms linked t o tenure, cont ribute to

these shortcomi ngs.5 It is undisputed that the on -going discourse about far m

dwellers’ rights derives from the failu re of the policy and tenure secur ity

legislation to adequately addre ss the issues in relation t o tenure secu rity on

farmland. Accord ingly, tenure security is st ill lacking, regardles s of a land

tenure reform progra mme having been in operation for twenty years.6

* I would like to tha nk the South Af rican Researc h Chair in Prope rty Law, sponsore d by the Depart ment of

Science and Technolog y, administere d by the National Resea rch Foundation, and h osted by Stellenbosch

University for f inancial support Spe cial thanks to Profes sor JM Pienaar for her valu able comments on

several dra fts of this ar ticle, which forms p art of my LLM thesis , Tenure Securit y in Relation to Far mland

LLM thesis Stelle nbosch (2012)

1 The policy set out t o address th e injustices of ra cially-based la nd disposse ssion; the racia lly skewed

inequitable distr ibution of land; tenure insecurity ; the lack of an ac curate record an d registe r of l and

rights; and t he ineffective admin istration of public land See RSA W hite Paper on South Afric an Land

Policy (199 7)

2 The governme nt promulgated the Exte nsion of Security of Tenure Act 62 of 1997 and t he Land Reform

(Labour Tenants) Act 3 of 1996 to c reate the enabl ing legislative f ramework tha t will facilit ate the

acquisition and streng thening of tenure secu rity in rural are as, in li ne with s 25(6), r ead with s 25(9) of

the Constit ution of the Republic of Sout h Africa, 1996 (“the C onstitution”)

3 RSA Draf t Tenu re Security Policy (2010) 1; RSA Green Pape r on Land Reform (2011) pa ras 10 3-10 4;

JM Pienaar “ Tenure Reform in South Afr ica: Overview and Chal lenges” (2011) 25 Spe culum Juris 108

108-133

4 Pienaar (2011) Speculum Jur is 123-127 Whi le ESTA and the LTA apply to rural land, t he Land Tenure

Securit y Bill (draft) in GN 1118 GG 33894 of 24-12-2010 explicitly mentions agri cultural l and The

Draft Land Tenu re Security Bill appl ies to agricultur al land in general and it s pecifically excludes l and

occupied by trad itional communities

5 Pienaar (2011) Speculum Jur is 123-127

6 JM Pienaar & A K amkuem ah “Farm Land a nd Tenure Securit y: New Policy and Legi slative

Developments” (2011) 22 Stell LR 724 724-741

(2014) 25 Stell LR 143

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In the course of 2010, the government presented the Dr aft Tenure Security

Policy (“Draft Policy”) and the Draft La nd Tenure Security Bill (2010) (“Bill”).

The main thr ust of both the Draft Policy and t he Bill is the consolidation

of ESTA and the LTA in a fu rther attem pt to provide stronger tenure r ights

for fa rm dwellers. These new intervention s redene the government’s

commitment to impr ove farm dwellers’ lives while residing on and off of

farmland.7

To reform the rules of land tenure on white- owned commercial farmland is

to redene the relationsh ip between the farm owner and far m dweller as well

as the respect ive right s relating to such land. The question af ter twenty years

of tenure reform is whether these new i nterventions will improve the situation

on farmland in r espect of farm dwellers’ tenure r ights. This is in line w ith

the understand ing that tenure in security, eviction and landle ssness continue

unabated on farm land.

Although other complex and impor tant issues come to the fore with regard

to tenure, all of these issues c annot be discussed her e in full. Accordingly,

this article is aime d at providing an assessment of the 2010 Draft Policy and

Bill, taking int o account the challenges facing farm dwellers on white- owned

commercial farm land. To achieve that aim, four inter-related aspects w ill be

examined closely, namely (i) the obligation to improve tenure securit y; (ii)

existing farm dweller s’ tenure rights; (iii) the shortcom ings of the existing

policy and legislative measures to ach ieve tenure security; and (iv) the general

impact of the Draft Policy and Bill on te nure se curity in light of the above.

Finally, it is highlighted that the govern ment’s attempts s till fall short of the

appropriate solution to solve the challenges on far mland that impede t enure

security. What then is t he way forward? Is a possible way forward perhaps

overhauling the whole tenure system on fa rmland to effectively addr ess

tenure issues? Or is it in amend ing the existing tenu re security legislat ion,

accompanied by effective implementat ion strategies?

2 Obligation to improve tenure security

The government is under a con stitutional mandat e to enact legislation and

to formulate any other rea sonable measures to advance and cre ate equitable

access to land8 and also to e nsure that rights a nd interests in la nd are legally

secure. Section 25(6) of the Constitution ensu res secure tenu re to previously

disadvantaged pers ons by placing an obligation on the legislature t o enact

laws to give effect to the tenure secu rity right.

7 Tenure insecur ity forms only one part of the c omplex set of problems a nd challenges fac ed by farm

dwellers Other aspect s are linke d to labour issu es, including p oor payment and wo rking condit ions;

dangerous wor king enviro nment; and exi sting and cont inued power relat ions See C Pat on “Farm

Workers Strike G rows in Western Cape” (13-11-2012) Business Day

labour/2012/11/13/farm-workers -strike-gr ows-in-western- cape> (accessed 16-11-2012); J Et heridge

“Zuma: Zille Must Work with Minist ers on Farm Protests” (15-11-2012) Mail and Guardian

mg co za/article/2012-11-15-zuma-zille-must-work-with-ministers -to-address-farmworker-protests>

(accessed 16-11-2012); Q Mtyala “Labour Unre st could Harm Indu stry” (14-11-2012) The Herald

www peherald com/news/article/10023> (acces sed 16-11-2012)

8 S 25(5) of the Constitut ion

144 STELL LR 2014 1

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