COGTA PERSPECTIVES ON PROVISION OF BASIC SERVICE TO FARMS, FARM WORKERS, FARM DWELLERS - PowerPoint Presentation

1. COGTA PERSPECTIVES ON PROVISION OF BASIC SERVICE TO FARMS, FARM WORKERS, FARM DWELLERS & LABOURS TENANTS PORTFOLIO COMMITTEE ON AGRICULTURE, LAND REFORM & RURAL DEVELOPMENT09 SEPTEMBER 2022

2. PRESENTATION LAYOUTIntroduction & Background. Perspective on provision of basic service to farms, farm workers, farm dwellers & labours tenants. Concluding Remarks.

3. INTRODUCTION & BACKGROUNDOn 31 August 2022, the Department of Cooperative Governance and Traditional Affairs received invitation letter from the Chairperson on of Portfolio Committee Agriculture, Land Reform & Rural Development for the department to provide perspectives with regard to provision of basic services on farms for the benefit of farmworkers, farm dwellers and labour tenants and the advancement of the socio-economic rights of the people living on farms in South Africa.The department perspectives should cover the following:The challenges of evictions and the role that the municipalities can play to support farm dwellers and victims of evictions, especially provision of temporary shelter (provide examples of interventions that have been made in the past);Implications of the High Court Judgement at Piertermaritzburg on municipalities (CASE NO.11340/2017P: the matter between Mshengu and others v Msunduzi Municipality and others);Provision of basic services on farms as well as provision of temporary shelter to victims of evictions (or any other support); andProposals for legislative amendment if any and implications for local government broadly.

4. challenges of evictions AND role that the municipalities can play to support farm dwellers and victims of evictions, especially provision of temporary shelterIn instances, where eviction has been granted by the court and the rights and needs of the elderly, children, disabled persons and households headed by women have been taken into account. The municipality has an obligation to undertake the following:Careful consideration in implementing the eviction process with respect to human rights.Follow in detail the directives ordered by the court over the eviction proceedings.Providing the occupiers with an alternative accommodation with water and sanitation facilities.Where there are immigrants, determine the status of the immigrants and assist those who qualify to apply for housing.The following challenges could be encountered by municipalities in light of the abovementioned obligations:• Incompetence to implement court directives.• Unavailability of land to relocate farm dwellers or those evicted.• Lack of budget to provide for required services such as water and sanitation.• Budget constraints in providing suitable temporary shelter to victims.

5. challenges of evictions AND role that the municipalities can play to support farm dwellers and victims of evictions, especially provision of temporary shelterThe role that the municipalities can play to support farm dwellers and victims of evictions, especially provision of the temporary shelter:Municipalities play a key role on water provision through water truck supply or tankering and sanitation (e.g.VIP toilets provision)Engaging with local business and various NGOs for providing food and temporary shelters.Municipality need to forge or strengthen the partnership with the farmers to ensure that basic services are provided to the farm community through municipal support plan.Examples of interventions that have been made in the past:The case of a group of waste reclaimers living on the Lyttleton farm in Centurion is a typical example of the challenges experienced by municipalities when seeking to evict farm dwellers or occupiers. The court ordered the City of Tshwane to provide alternative temporary shelter as well as water and sanitation facilities to 66 households on the farm, which included a total of 109 units. However, the City did not comply with these directives and only provided 40 units instead of 109. The City failed to fully implement these directives and was compelled by the court to comply before evicting the farm occupiers.

6. SUMMARY OF THE COURT JUDGMENT On 5 May 2017, Mr Zabalaza Mshengu and two others brought an application against the respondents, which included Msunduzi and uMshwathi local municipalities (1st and 2nd respondents respectively) as well as uMgungundlovu District Municipality.The application sought, among others, an order declaring that the 1st and 2nd respondents’ ongoing and persistent failure to provide the farm occupiers and labour tenants residing within areas of their jurisdiction with access to basic sanitation, sufficient water and refuse collection, was inconsistent with the Constitution, particularly sections 9, 10, 24, 27(1)(b), 33, 152, 153, 193 and 237.In a judgment delivered by the KZN High Court on 29 July 2019, that application was successful (NB: This judgment is reported at page 15 of DCoG’s Annual Performance Plan 2020/21). Sadly, by the time this judgment was delivered, Mr Mshengu, who was already a centenarian at the date when the application was brought, had since passed away.

7. IMPLICATIONS OF THE COURT JUDGMENTMunicipalities have a constitutional obligation to focus on the provision of basic services and may not prioritise other services at the expense of basic services [para 52].The obligation to provide water and sanitation for farm occupiers and labour tenants rests on the municipality, as the water services authority, not on the landowners, even in instances where the former has contracted the latter to provide that service [para 62]. A municipality that is a water services authority has a duty to ensure that the landowners or other intermediaries provide access to a basic level of sanitation service to those living legally on their land [para 63].Given that a landowner has a secondary obligation under sections 8 and 27 of the Constitution and the Water Services Act, 1997, s/he cannot unreasonably deny the municipality access to his or her farm in order to install the necessary infrastructure to ensure the provision of the services [para 63].

8. IMPLICATIONS OF THE JUDGMENTEven a municipality that is not a water services authority cannot absolve itself from its constitutional responsibilities by simply contending that it is not the water services authority [para 65].A municipality that is a water services authority must adopt and implement a plan or policy that makes special provision for farm occupiers and labour tenants and must provide a reasonable plan for progressively realising their rights in order to comply with its obligation [para 69].As farm occupiers and labour tenants are vulnerable and poor, with the majority of them even ignorant of their constitutional rights, it behoves of all municipalities to be pro-active in ensuring that the farm occupiers and labour tenants have access to services [para 75].Courts may – and, if need be, must – use their wide powers to make orders that affect policy as well as legislation, even if such orders will interfere with the doctrine of separation of powers [para 81].

9. CONCLUDING REMARKSThe judgment recognises the fact that unlawful occupation of land is prohibited. The judgement further directs in para 63 that a municipality has a duty to ensure that the landowners or other intermediaries provide access to a basic level of sanitation service to those living legally on their land.The judgment does not have implications for municipalities only, it also has implications for landowners, as it also decided in para 63 that they cannot unreasonably deny municipalities access to their farms in order to install infrastructure for the provision of services.It is a very well reasoned judgment and has applied the law correctly, which probably explains why none of respondents against whom the judgment was made have appealed it. Municipalities that are failing to provide basic services to farm occupiers and labour tenants may soon find themselves being dragged to courts to compel them to provide those services.

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