History of Land Expropriation in South Africa (1)
An entire history
of colonial conquest and dispossession, of cheap labor and systematic exploitation,
and of segregation, apartheid and white supremacy has created a society
in which 60,000 capitalist farmers own 12 times as much land as over 14
million rural poor. Fundamental to the construction of an unjust, inequitable,
repressive and brutal social order is an unjust, punitive and untenable
allocation of land and rights to land.
Unequal access to land, enforced by law, underpinned white control of power in South Africa during both the colonial and apartheid eras. From the date of the first European settlement at the Cape, founded by Jan van Riebeeck in 1652, the indigenous peoples of South Africa--the Khoi and the San (the Bushmen) and subsequently the Bantu language-speaking peoples to the north and east of the Cape--were, at first gradually, and later more comprehensively, driven from the land from which they had previously derived their livelihoods. Although the dispossession of peasant producers is a process common to many modernizing societies, South Africa saw a particularly extreme and violent version of this process. Land was acquired by force of arms, a cash economy and cash taxation system forced peasant producers into debt and alienation of their land, and laws were passed to benefit the property-owning classes.
In the British Cape Colony, the nineteenth century saw a series of wars between settlers and different African chiefdoms which opened up most land west of the Kei river to white settlement by the 1880s. Several small reserves for Africans who had supported the whites in the wars were created amongst the white farms, but most Africans had no choice but to live on white-owned farms as full-time workers--and were integrated into the structures of settler society far earlier and more extensively than elsewhere in southern Africa. From the 1870s, land east of the Kei was annexed and brought under British rule as African reserves. In Natal, from the 1840s the British administrators created a series of small reserves from land deemed undesirable by settlers. When the Zulu kingdom was annexed by the British in 1887, a similar system of reserves was applied there, with the remaining land opened up for white settlement or declared to be state land. By contrast, the early settlements of whites in what became the Boer republics of the Transvaal and Orange Free State (now Mpumalanga, Northern, North-West, Gauteng, and Free State Provinces), were established with the permission of the chiefs. But, following the first British occupation of the Transvaal (1877-1881), the Transvaal government launched a series of wars of conquest against the independent chiefdoms on the still ill-defined borders of the republic. Little land was designated as "reserves" for the African population, because of the resistance of white farmers, for whom land was the only major economic resource available. In the Orange Free State, an even smaller proportion of the land was left under African control.
By the end of the nineteenth century, the process of conquest was almost complete. Yet in many areas blacks continued to farm on white land through systems of land tenure that allowed some independent African production. These systems included cash tenancy; labor tenancy, by which people secured access to land in return for the labor of some of the members of the family for an agreed proportion of their time; and sharecropping, pejoratively known by whites as "kaffir farming," by which Africans obtained the right to farm with their own implements and livestock, on condition they gave a share of their crop to the white owners of the land. Some Africans succeeded in accumulating sufficient cash to purchase land from whites; these areas of African freehold came in later years to be called "black spots" by the National Party government which took power in 1948. Together, these developments produced a small but growing class of African smallholders and market farmers--peasants--who supplied the small towns of South Africa with much of their food and provided a growing economic challenge to white producers.
The mineral discoveries of the late nineteenth century and the development of the gold mining industry in the Transvaal in the 1880s brought major economic changes, and with them political restructuring. Tensions between the Transvaal Boer republic and the British-dominated mining and industrial companies over control of the wealth of the Witwatersrand led to the outbreak of the Anglo-Boer, or South African, War in 1899. The eventual military victory of the British led in turn to the creation of the Union of South Africa, incorporating what were by then the four British colonies south of the Limpopo, in 1910. The rapid growth of an urban population with these developments encouraged white commercial farming, and white farmers used their political strength to bring pressure on the independent black producers, and force them into working on white farms. As early as 1885, the Orange Free State government passed a law designed to limit the number of rent-paying or sharecropping African families allowed on each white-owned farm; and taxes, rents and other fees were generally raised. At the same time, the mining industry was anxious to force Africans into wage employment, favoring a migrant labor system where Africans had their primary homes in tribal reserves, and the young men entering the wage economy could be paid low wages on the basis that their families could make a living off land in the reserves. Farmers, on the other hand, disliked the reserves, which preserved the possibility of independent African agricultural production. The mining and industrial revolution also stimulated new political organizations among the black population: in 1912, the African National Congress (ANC) was formed by members of the small mission-educated African elite.
The South Africa Party, which formed the first government of the Union in 1910, adopted a "native policy" designed to promote a stable labor supply for industry, and at the same time to benefit farmers by ending independent African agricultural production. The 1913 Natives Land Act (later renamed the Black Land Act) was the result. The act was one of the most important pieces of legislation of the new government, providing the statutory basis for territorial segregation in South Africa. It divided the rural parts of the country into areas where Africans could own land (the reserves)--thus ensuring that Africans would not become a totally landless group and preserving the migrant labor system--and the rest, where Africans were prohibited from "purchase, hire, or other acquisition of land or of any right thereto." (3) The schedule to the act listed land already set aside as reserves by the four provinces prior to the Union, approximately nine million hectares or less than 8 percent of South Africa's land, mostly in the Cape and Natal. In recognition that this land was inadequate to house all Africans, there were also provisions to allow the increase of the reserves to 13 percent of the land. The 1913 land act intended to end the more independent forms of tenure which until then had allowed Africans to live and work on land that was technically owned by whites, especially sharecropping and cash tenancy, and turn all Africans on white farms into wage laborers, or, as a second best, labor tenants. Tens of thousands of black tenants (increasingly referred to as "squatters") and sharecroppers were forced off the land they had been farming and onto the roads in search of white farmers who were prepared to defy the law and enter into tenant or sharecropping arrangements with them. In his classic work Native Life in South Africa, written in 1916, ANC leader Sol Plaatje described how, "Awakening on Friday morning, June 20,  the South African native found himself not actually a slave but a pariah in the land of his birth." (4)
As a result of the 1913 land act, the most common form of farm labor and of black independent production in the northern parts of South Africa, especially in the Transvaal and northern Natal, came to be the labor tenant system, by which people secured access to land by working for the landowner. In the Western Cape, in particular, farming moved much more quickly to a system of cash labor in a capitalist market. The relationship of labor tenancy is essentially between the family and the farm owner, rather than the individual worker and the farm owner as employer; traditionally, the extended family could live on the farm and grow their own crops or graze livestock on land designated for the purpose, so long as one or more members provided their labor in accordance with the agreed terms. The head of the household, the father, as well as the farmer, was thus involved in the extraction of labor from his wives and children, creating the potential for severe inter-generational and gender conflict within the tenant household. If any one of the family members broke the contract, then the whole family was liable to eviction. In its original form, no cash wages were paid for the labor provided, which was on the basis of a number of days a week the year round, and the tenant used his own livestock and implements on his own and the landowner's land. By the 1920s, however, most labor tenants were contracted to work full-time for part of the year (usually anything from three to nine months), many received cash wages to supplement the right to use the land, and they increasingly used the landlord's implements and animals rather than their own. Nevertheless, labor tenants' continued relative independence and their sense that the land was theirs, not the legal landowner's, made them often unreliable workers for the farm owner, and notorious among whites for letting their cattle roam all over the farm, helping themselves to wood, and other misdemeanors. The system persisted--as did sharecropping, though to a lesser extent, despite its banning--because South African agriculture was profoundly unprofitable and white farmers could not otherwise secure the labor they needed, given their inability to pay competitive wages. For some black families the independence from increasingly autocratic chiefly control in the tribal reserves was also appealing. Finally, whites could usually depend on the state to give the backing of law and force to their demands on their black tenants.
By the 1920s, the longer term effects of the 1913 land act were becoming clear, and generated broad demands among the African population for the right to hold land and end white control. These demands were led by the Industrial and Commercial Workers Union (the ICU), the first black political organization to make the transition to a mass movement. At least partly in response to the threat posed by this mobilization, and the fear of communism it engendered among the increasing numbers of white farmers, (5) the Natives Administration Act (No. 38 of 1927; later renamed the Black Administration Act) granted the government extensive new powers. The act criminalized the fomenting of racial hatred between "natives and Europeans," set the framework for a uniform system of administration for black people in South Africa (strengthening the powers of chiefs to control dissident elements and moving away from the greater integration tolerated in the Cape), and created the power of forced removal of blacks from "white" land. In its original form, section 5(1)(b) of the Native Administration Act provided for the government to "order the removal of any tribe or portion thereof or any Native from any place to any other place... upon such conditions as he may determine," if he deemed it "expedient in the general public interest." Over the years before its repeal in 1986, the law was strengthened in various ways, including to allow a removal "without prior notice." This was the primary legal provision used during the apartheid years for the forcible removal of many thousands of people living in "black spots" in "white" South Africa.
At the same time, the need for more land to be set aside for the reserves, in accordance with the commitment of the 1913 land act, eventually became sufficiently urgent to overcome white farmers' resistance. The 1936 Development Trust and Land Act (No. 18 of 1936) identified land to be "released" for African occupation, thus expanding the reserve areas defined ("scheduled") in 1913. Part of this land was already owned by the state; other areas had to be purchased by the state from private owners, a process that continued over the next fifty years. (By the end of 1987, the "quotas" set in 1936 for land that might be acquired under this process had been exceeded by about 10 percent, with the result that the ten homelands together constituted about 13.8 percent of South Africa's surface area. (6)) The 1936 land act also established an elaborate system for the compulsory registration and control of labor tenants. Any "native" unlawfully on land, including those who had the consent of the landowner but were in excess of a number set down by the labor tenants control board, could be summarily ejected by the police, using force if necessary. Even those farmers who wished for good relations with their black tenants were therefore pushed into confrontation. These drastic measures provided the basis for most farm removals that were to follow, though they were not widely enforced until the 1950s.
By the 1940s, the African reserves were reaching levels of immiseration that threatened the very existence of the migrant labor system. People who could no longer scrape any living from the land were moving in increasing numbers to the urban areas. The years of the Second World War also saw increasingly rapid industrialization, which brought with it a massive housing crisis for the black population, labor unrest, rising black expectations and political consciousness, as well as demands from manufacturing industry for a more stable and skilled African workforce. At the same time, the profits of the mines rested on cheap, unskilled, migrant labor, and white workers feared competition from skilled blacks; while white farmers had been hard hit during the depression of the 1930s and by the war, and faced a chronic shortage of labor they blamed on "unfair" higher wages available in the towns and the "soft" policy of the previous government on African urbanization and the reserves. Organized white agriculture, in the form of the South African Agricultural Union (SAAU), and its constituent elements, especially the Transvaal Agricultural Union (TAU), formed a powerful political lobby. (7)
The National Party was the party of the white worker and the white farmer. It was elected in 1948 on a platform promising apartheid, or (euphemistically) "separate development." The party's aims were to keep blacks out of urban areas as much as possible and to crush the ever more vocal demands from the ANC and its allies for greater political freedom and for an end to racial and economic discrimination. Its policies included the expansion of controls on the movement of African workers and the toughening of security legislation. By the 1960s and 1970s, its program also included the creation of "homelands," or "bantustans," for each major African ethnic group. The government also embarked on a program to eliminate persistent black "squatting" on white land and transform the "wasteful" (because part-time) system of labor tenancy into one of full-time, wage-paid, farm labor. Commercial farmers received generous subsidies for agricultural production, as well as tariff protections, marketing controls protecting them from price fluctuations, cheap credit, and other benefits. Black prison labor was extensively deployed on farms: at the height of the scheme in 1957 to 1958, some 200,000 convicts were hired out to white farmers annually, at the rate of a few pence per day. (8) The use of prison labor in this way was only formally ended in 1987 (though there were reports of its continued availability as late as 1989). The government also engaged in some efforts to improve the situation in the reserves, through so-called betterment planning, the first aspects of which had been introduced in the 1930s, including fencing, erosion controls, culling of cattle, and the separation of residential and farm land.
In 1950, the first Group Areas Act was passed (Act No. 41 of 1950), providing for the legal, rather than informal and de facto, designation of separate (and unequal) living spaces for four major population groups: whites, natives (meaning people of African ancestry), Indians, and "Coloureds" (those of mixed race); the Population Registration Act of 1959 provided the legal framework to designate the racial category of every person. (9) The Group Areas Act superseded rather than repealed the provision of the 1913 land act prohibiting Africans from owning land outside the areas set aside for them, and applied everywhere except in the reserves, black urban townships, national parks, and other less significant areas. Although actual group areas were only ever declared for a small proportion of the land falling under the act, its effect was felt everywhere, in particular through the requirement that the occupier of land be of the same racial group as the owner. In the white-owned rural areas especially, this provision meant that it was unnecessary to invoke the full extent of the act to prevent cross-racial tenancy contracts. The first large scale forced removals, mostly from urban areas, took place under this act (and other location-specific legislation) from the mid-1950s. (10)
The Prevention of Illegal Squatting Act, No. 52 of 1951 (amended and strengthened as late as 1988), provided legal powers aimed at reducing the informal settlements that had mushroomed around the urban centers. The key provision of the act provided for it to be a criminal offense for any person to "enter upon or into ... or remain on or in any land or building" without "lawful reason" or the permission of the "lawful occupier" (a clause that touched even the casual trespasser who had no intention of remaining permanently on the land). The act also empowered a land owner to demolish any buildings on his land without the need to obtain a court order, and gave a magistrate administrative powers to order the removal of persons from land or to demolish structures in the interests of "the health and safety of the public generally." Laws were also introduced making it compulsory for all Africans over the age of sixteen to carry a "pass," a personal identity document, at all times, and restricting the right of Africans to leave white farms and enter urban areas except to provide labor needed by white families and industries. Once a person got a "farmworker only" stamp in his pass book, it became virtually impossible for him to work legally in any other capacity. Tens of thousands of people were jailed for infringement of the pass laws over the following years.
The Trespass Act, No. 6 of 1959, which is still in force, was also widely used in conjunction with other measures to secure the removal of people from land when their presence became inconvenient to the "lawful occupier." The four-section act makes it an offense--in terms very similar to the Prevention of Illegal Squatting Act--to enter into or be upon any land or building without permission or "lawful reason." Although the act contains no provisions empowering the courts to order the eviction of anyone convicted of trespass, the practical effect of arrest and conviction has often been to drive those convicted off the land--without the need to institute civil proceedings. Despite its apparent character as an ordinary criminal statute, the act is closely linked to other historical legislation created to advance racially-based ownership of land.
Under these laws, the process of evicting farm residents was simple. When he decided that their presence was no longer wanted, the white farmer would usually give a tenant or farmworker family a "trekpas," a letter stating that the worker or labor tenant, his family, and all their livestock must vacate the farm by a certain date. If the family had not left by that date, the farmer would report the matter to the police and lay a charge of trespass or illegal squatting. The head of the family would then be arrested and brought to court. In most cases, the only basis for challenging the eviction would be the unreasonableness of the circumstances of eviction and the shortness of the notice period, generally not more than two weeks or a month. The law could be invoked even if the family had been living on the farm for decades and there was no breach of the contract from the tenant side--only, perhaps, a refusal to shift the terms of the contract to that of wage-paid labor from labor tenancy. The farmer was not compelled to give any reason for ordering a worker and his family to move, and had no responsibility for finding alternative accommodation nor to compensate evicted tenants or workers for houses they had built.
Despite these draconian laws, there was continued agitation from the agricultural associations representing white farmers, and in parliament, for the complete ending of labor tenancy and the substitution of wage labor. The 1936 land act was repeatedly amended to achieve this purpose. In 1961, the Nel Committee of Inquiry into the Labor Tenant System recommended the complete abolition of labor tenancy within seven years, a recommendation given effect in 1964. The Bantu Laws Amendment Act, No. 42 of 1964, which substantially amended the 1936 land act as it applied to labor tenancy, increased the costs of registration, limited the numbers of contracts allowed, and provided for the prohibition of labor tenant contracts district by district. The labor tenancy system was finally formally abolished throughout South Africa in 1981 (under a proclamation gazetted in 1980). It became an offense to enter into a labor tenant contract, and any such contract was null and void. The result of this legislation was the forced removal of hundreds of thousands of labor tenants from farms in the 1960s and 1970s--a process hastened by the increasing mechanization of agriculture, which reduced the demand for labor. Of the perhaps one million people living on farms as labor tenants in 1936, the government announced in 1973 that only 16,000 such contracts remained, and were due to be phased out. (11) (Nevertheless, labor tenancy continued to survive in southern Transvaal and northern Natal, under a hybrid system by which families were allowed access to much less land for cultivation or grazing, but were also paid minimal wages for the labor supplied, thus passing as wage-paid laborers.)
At least 3.5 million people were forcibly removed from their land and homes through the use of these laws, the majority of them in the 1960s and 1970s; approximately 1,129,000 of these people had lived on white-owned farms, the largest single category. (12) The proportion of Africans living in urban areas fell from 29.6 to 26.7 percent of the total population from 1960 to 1980; the proportion of the African population living on white-owned farmland fell from nearly a third of the total to one fifth (though, with population growth, the absolute numbers still grew, and the ratio of blacks to whites in farm areas increased, even though the number employed in agriculture fell (13)), and the reserve-based population grew from under 40 to nearly 53 percent, a total rising to over 60 percent if migrant laborers absent for work were included. (14) The removals coincided with an economic boom for whites. As one author opined: "At some point around 1970, white South Africans overtook Californians as the single most affluent group in the world." (15)
In order to accommodate all those removed from "white" South Africa, the National Party government elaborated and extended the reserve system, by the passing of legislation to provide for black "self-government" in the reserve areas, intended to become ethnically (as well as racially) segregated "homelands" for each of South Africa's African "tribes," units to be defined by the white government. The Bantu Authorities Act, No.68 of 1951, provided for the establishment of tribal, regional, and territorial authorities in the reserves, and in 1954 the Tomlinson Commission was appointed to investigate the future of the tribal areas, making several radical proposals. The Promotion of Bantu Self-Government Act (No. 46 of 1959) formalized the political transformation of the reserves, and removed the last traces of black representation in white political institutions. With the creation of the bantustans, the removal of "black spots" in "white" South Africa became a government priority, blighting as they did the propaganda picture that all Africans naturally belonged in their own ethnic homelands. Consolidation of the scattered scraps of reserves into more coherent units, through the purchase of white farmland if necessary, was also accepted as a policy. The Bantu Homelands Citizenship Act, No. 26 of 1970, by which all African South Africans automatically became citizens of one or other of the homelands, and the Bantu Homelands Constitution Act, No. 21 of 1971, completed the legislative framework. Eventually, ten homelands were created, of which four (Transkei, Bophuthatswana, Venda, and Ciskei) were declared"independent" by the South African government.
In 1985, in the face of growing national and international pressure to end these policies, the government announced that it was suspending the policy of forced removals, though "voluntary" removals would continue. The next year, the Abolition of Influx Control Act (No. 68 of 1986) repealed the provisions of the 1936 land act relating to labor tenancy, along with the pass laws and other apartheid provisions restricting freedom of movement of blacks in white rural areas. Labor tenant contracts once again became legal, subject to the common law surrounding such arrangements. At around the same period, the government introduced token political reforms, adopting a new constitution in 1983 that created a tricameral parliament in which Indians and Coloureds (but not Africans) would have representation in separate chambers. This lifting of control was short-lived. The suspension of forced removals was reversed in 1986, when political challenge to the government from the United Democratic Front (UDF) and unions led to the declaration of a second state of emergency in as many years. However, subsequent removals of whole communities were carried out largely in urban areas (for example, at Crossroads, near Cape Town), though the process of forced "incorporation" of rural communities into the homelands continued, involving not the physical removal of people, but the redrawing of homeland boundaries to include their land. In 1988, the Prevention of Illegal Squatting Amendment Act (No. 104 of 1988, promulgated in February 1989) reintroduced many of the controls abolished in 1986, by providing for the removal of persons living on land but not employed by the owner or occupier of the land, even where they were present with the consent of the owner or occupier. This provision was apparently designed to reintroduce a clause of the 1936 land act, repealed in 1986, allowing unemployed residents of white farms to be easily and forcibly removed. The South African Agricultural Union issued a memorandum to its members in November 1988, suggesting that they compile lists of all those living but not employed on their farms, with a view to invoking the new amendment. (16)
2, 1990, President F.W. de Klerk announced the unbanning of the ANC and
other black political organizations, the imminent release of Nelson Mandela
and other political prisoners, the lifting of the state of emergency in
most parts of the country, and the beginning of a process of open dialogue
that ultimately resulted in the nonracial elections of 1994 and the installation
of South Africa's first democratically chosen government. In 1991, the
Abolition of Racially Based Land Measures Act (No. 108 of 1991) repealed
the 1913 and 1936 land acts, the Group Areas Act, and other laws.
(17) A white paper on land reform was published, proposing very
limited land redistribution and rejecting the notion of restitution; the
ANC published its own land policy in 1992, and a policy on farmworkers
in 1993. It was left to the new government of national unity, elected in
1994 and led by the ANC, to institute a comprehensive program to redress
the injustices of past land expropriations and provide a measure of security
The land shall be divided among those who work it. (18)
The reality of South Africa's negotiated transition has meant that the ANC's historic pledge to redistribute land, made in the Freedom Charter adopted at Kliptown in 1955, has not been honored. Nevertheless, the ANC in government has made significant commitments to redress the racially-based land allocations of South Africa's colonial and apartheid past, and has ensured that those commitments are enshrined in the constitution.
Section 25 of the South African constitution, relating to property rights, includes the following provisions:
(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions that enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure, or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property, or to equitable redress.
(8) No provision
of this section may impede the state from taking legislative and other
measures to achieve land, water and related reform, in order to redress
the results of past racial discrimination, provided that any departure
from the provisions of this section is in accordance with the provisions
of section 36(1). (19)
Section 25 also provides that "No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property," that land may be expropriated only for a public purpose or in the public interest, and that "just and equitable" compensation shall be paid if property is expropriated, taking into account "all the relevant circumstances." (20)
Four laws provide
the framework for the main elements of the government's land reform program:
the Provision of Land and Assistance Act (No. 126 of 1993); the Restitution
of Land Rights Act (No. 22 of 1994),
the Land Reform (Labour Tenants) Act (No. 3 of 1996),
known as the Labour Tenants Act, and the Extension of Security of Tenure
Act (No. 62 of 1997), known as ESTA.
(21) The Labour Relations Act (No. 66 of 1995) and the Basic
Conditions of Employment Act (No. 75 of 1997) also afford farmworkers protection
under the law.
The Restitution of Land Rights Act 1994 was enacted in accordance with provisions of the interim constitution in force between April 1994 and February 1997. It aimed to restore rights in land of which people were dispossessed under apartheid laws since 1913 and promote the protection and advancement of individuals or groups who were disadvantaged by unfair discrimination. (22) Restitution can take the form of restoration of the land from which claimants were dispossessed, provision of alternative land, payment of compensation, or priority access to government housing and development programmes. (23) The process of restitution is administered by a Commission on Restitution of Land Rights and a Land Claims Court established under the act. The Communal Property Associations Act (No. 28 of 1996) provides a framework for group ownership of land, following the restitution or redistribution of land under one of the government programs.
for restitution had to be lodged by December 31, 1998.
(24) Once a claim was lodged, the commission was obliged to publish
a notice and contact all involved parties. The commission investigates
the claim and attempts to mediate a settlement.
(25) If a settlement is not possible, the commission refers the
claim to the court in any event, which then decides what restitution is
The Department of Land Affairs (DLA) assists the commission in preparing
claims, is involved in negotiations for the transfer of land and payment
of compensation, and can release additional resources to claimants. In
1997, an amendment to the act allowed claims to be submitted directly to
the court to streamline the processing of restitution claims, though this
process is not being utilized in practice.
(27) By the deadline of December 31, 1998, 63,455 claims had
been lodged with the commission, most of them relating to urban land.
(28) A major complaint about the restitution process has been
the backlog in dealing with claims, leading to a ministerial review in
1998 which developed recommendations to speed up the restitution process.
(29) Since mid-1999 the process has quickened. While only forty-one
claims had been settled by the end of March 1999, as of April 3, 2000,
3,916 claims had been settled (13,608 claimant households and 80,889 beneficiaries
at a cost to the state of R178.6 million (U.S.$ 23.5 m));
(30) by November 2000, the Department of Land Affairs reported
to parliament that 6,535 claims had been settled.
(31) Most of the claims settled have been awards of monetary
compensation to urban claimants, rather than land restitution to rural
claimants, though only three hundred thousand people stand to benefit from
urban claims, as against 3.6 million people from the settlement of rural
claims. (32) By
May 2001, the number of claims settled had almost doubled again, to 12,150,
involving more than 27,600 families and 164,000 individuals, with R198
million ($26.1 m) spent in the 2000/2001 financial year.
(33) R464.7 million ($63.8 m) had been spent on the program since
1995, of which R182.3 million ($24 m) was spent on buying land for restitution,
R260.6 million ($34.4 m) to pay financial compensation.
The government's tenure reform program has sought to provide security of tenure by recognizing de facto systems of vested rights existing on the ground, based on the principle that established occupation should not be jeopardized unless viable and acceptable alternatives are available for tenants to move elsewhere. (34) The Land Reform (Labour Tenants) Act 1996 and the Extension of Security of Tenure Act 1997 were passed "to protect farm workers and labor tenants from arbitrary evictions and to provide mechanisms for the acquisition of long term tenure security." (35)
Tenants Act defines a labor tenant, a person who exchanges labor for a
right of access to land, as 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 labor 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 labor to the owner or lessee of such
or such other farm, including a person who has been appointed a successor
to a labor tenant ... but excluding a farmworker.
A labor tenant can only be evicted for specified reasons, which must be "just and equitable," and on the basis of an order of the Land Claims Court. (37) Labor tenants aged over sixty-five who can no longer work cannot be evicted, and the family of a labor tenant who dies must be given twelve months notice prior to eviction. (38)
An amendment passed in 1997 shifted the onus to the farm owner to prove that an individual is not a labor tenant, inhibiting farmers from easily claiming that the labor tenant is not protected by the law because he or she is really a farmworker, and therefore not covered under the statute. The amended act requires that labor tenant cases be transferred to the Land Claims Court. (39)
In addition to providing security of tenure, the Labour Tenants Act also seeks to enable labor tenants to acquire title to land in which they historically have had usage rights. (40) Claims for land rights under this statute must be filed by March 31, 2001. (41) The owners of land affected by the statute are entitled to "just and equitable" compensation, as determined by the Land Claims Court, for land given over to labor tenants. (42) Upon application for ownership rights under the legislation, the labor tenant may be eligible for government grants to pay the owner compensation or to develop the land. (43)
The Extension of Security of Tenure Act aims to protect rural occupiers of land other than labor tenants against arbitrary eviction, by regulating the circumstances under which they may be evicted, and to ensure basic rights, such as the right to allow access to visitors and the right to visit family graves on land belonging to another person. (44) (The act does not give the right to carry out new burials on such land, even if the deceased person was legally resident there and the relatives are still resident. Land rights organizations see this as a major weakness of the act. (45)) Under ESTA an occupier's right of residence may be terminated on "any lawful ground, provided that such termination is just and equitable" on the basis of factors set out in the act. (46) An occupier who has been resident on the land in question for ten years, and is over sixty years of age or is a former employee of the owner who is disabled or otherwise unable to work, has further protections. A person may be evicted only in terms of an order of a magistrates' court: once a right to occupy the land is terminated by the owner, the court will consider whether the termination is in accordance with the law, considering various factors, and may then grant an order for eviction, but only "if it is satisfied that suitable alternative accommodation is available." (47) It is a criminal offence, punishable by up to two years imprisonment and a fine, to evict a person other than in accordance with an order of court. (48) In a landmark April 1999 ruling, in the case of Conradie vs. Hanekom, the Land Claims Court ruled that a woman farmworker could not be evicted from the farm where she worked following the dismissal of her husband and that the right to family life gave the woman the right to allow her husband to continue living in her home on the farm. (49)
orders granted by magistrates' courts are required to be referred to the
Land Claims Court for review: the Land Claims Court reportedly overturns
perhaps more than half of the eviction orders that reach it, for non-compliance
with the terms of the act.
(50) Although the act provides that cases are to be referred
to the LCC it sets no precise time limit for this to be done; the LCC rules
provide for the referral to be "forthwith," but there are still delays.
In some cases the file only reaches the Land Claims Court six months after
the initial decision, and "what is the review worth if the guy has gone
from the land and maybe can't even be traced when we overturn the order."
(51) In order to address this problem, the government amended
the act to provide for magistrates' court orders for eviction to be suspended
pending review by the Land Claims Court. Despite this change, there are
still cases in which removals in terms of a magistrate's order are carried
out before the Land Claims Court has reviewed and approved the decision.
goal of the government's land redistribution program is "to provide the
wider majority of South Africans with access to land for residential and
productive use in order to improve their livelihoods, with particular emphasis
on the poor, labor tenants, farm workers, women and emergent farmers."
(52) According to one survey, about 68 percent of South Africa's
black rural households desire farmland, most of them small amounts.
(53) The government initially decided to provide the landless
poor with a "settlement and land acquisition grant," set at R15,000 (U.S.$2,000),
to purchase land from willing sellers and make other capital investment.
(54) In 1999, the grant system was revised following a ministerial
review, to award grants of various amounts, depending on the total cost
of the proposed project. Small, medium, and large projects would respectively
receive grants of 70 percent, 40 percent, and 20 percent of the total cost
of the project. The settlement and land acquisition grant was replaced
by a "land reform grant" distributed according to different criteria, which
would distinguish between land for residential settlement and land for
market-based agriculture. In May 1999, a Land Reform Credit Facility was
launched to provide wholesale loans to assist in the creation of commercially
viable land reform projects.
(55) The government's aim is to transfer ownership of fifteen
million hectares of land by 2005, and 30 percent of South Africa's arable
land within fifteen years.
(56) To date, the government has been unwilling to use its power
under section 25 of the constitution to expropriate land, preferring to
adhere to a willing-seller, willing-buyer model.
Implementation of land reform has been impeded by a lack of financial and other resources. The DLA receives only 0.4 percent of the national budget, of which only about half is allocated for land acquisition. (58) Although the state has huge landholdings in South Africa, little of it is in practice available to the redistribution program. (59) Because of staff shortages and other problems, processing of a claim by the DLA can take years, and implementation problems have meant that the department has in fact had difficulties spending its budget for redistribution. The restitution program has been plagued by structural problems in the relationship between the DLA and the land claims commission, a lack of effective cooperation between agencies, logistical problems, difficulties in identifying beneficiaries, and a lack of trained and effective staff. (60)
The slowness of delivery in the land reform program has caused significant tension on the ground. Organizations working with farm residents are becoming increasingly frustrated. (61) As one lawyer working on eviction cases put it to Human Rights Watch, "The temperature is rising. It is a major problem that land reform is not happening. I don't want to blame the Department of Land Affairs, but they are under-resourced, under-capacitated, and they can't cope. And people are becoming very frustrated; in the rural areas they say they are no better off than they were before. The consequences could be problematic." (62) Another commented, "The biggest problem at this point is the department. The legal issues have been decided in the Land Claims Court and Appellate Division, but the difficulty is implementing agreements between landowners and farm residents, to see to it that there is an actual transfer of land, for which the department must be involved. Everything is stuck, we just get no reply to letters, or proposals for discussions. Because of the delays, there is no transformation in practice, and so people are beginning to have doubts about the good faith of the government." (63)
Farm owners and their representatives agree with this assessment, in particular that the failure to deliver on land reform is likely to exacerbate tensions between farm owners and their workers or tenants. Some farm owners believe that the problems in delivering land reform reflect a politically-motivated hidden agenda rather than simple bureaucratic delays: "Land Affairs is a big problem. It seems that it is a political organization. For example, there are three farmers in this area with 7,000 hectares they are willing to sell, but they are battling now for three or four years to get the sale through. Land Affairs are not willing to help people, but then they are instigating people on the ground to think that it is the farmers' fault, not the Department of Land Affairs." (64) A representative of organized agriculture commented to Human Rights Watch "The land claims process is not a transparent system; often the farmer does not know a claim has been lodged until he sees it in the Government Gazette." (65) When considering promises made for future speeding up of the land redistribution program, farm owners are even more concerned: "The government says that 30 percent of commercial farmland must be redistributed, but there is no money set aside; and what is going to happen when it doesn't take place? The farmers will be sitting with the problem." (66) Farm owners' assessments are based on the premise, challenged by land rights organizations, that land ownership as it currently exists is fundamentally legitimate, even if some redistribution is justified: "There are problems because promises were made that have not been kept, and nobody's bothered to tell the tribal community that it's not their land." (67)
The land invasions promoted by the government of Zimbabwe have concentrated the minds of government, farmers, and farmworkers on the land issue in South Africa. President Mbeki has been criticized for being slow to speak out against President Robert Mugabe's policies, including both land invasions and the violence visited on opposition candidates in the country's 2000 elections. Nevertheless, in its formal statements the South African government has repeatedly stated that land redistribution in South Africa will only take place within the context of the law, and that invasions along the lines of those taking place in Zimbabwe will not be tolerated--even though some comments have been interpreted by the media to express support for Zimbabwe's policies. (68) While there have been no organized land invasions along the lines of those in Zimbabwe, many farm owners reported to Human Rights Watch that, especially in areas adjoining the overcrowded former homelands, there has been a "creeping" invasion of individual farms through methods such as the breaking down of fences in order to graze stock, or a rapid increase in the number of people living on a farm without the permission of the landowner.
2000, the National Land Committee and the Centre for Applied Legal Studies,
University of the Witwatersrand, held a joint media briefing at which they
warned that there could be a serious breakdown of law and order in the
rural areas, as had happened in Zimbabwe, if the government did not speed
up land reform. (69)
In May 2001, the government condemned a threat to invade farms made by
the Mpumalanga Labour Tenants Committee, and said that land invaders would
be dealt with severely in terms of the law.
(70) In June, the government ordered the removal of people who
invaded a farm from which their families had been forcibly removed during
the apartheid era, near Kuruman in the Northern Cape.
Only very recently, since the transition to democratic government began, has the protection of employment law been extended to farmworkers. The 1983 Basic Conditions of Employment Act (BCEA) was amended with effect from May 1, 1993, to provide farmworkers for the first time with rights to maximum working hours, overtime pay, sick leave, lunch hours, and other basic protections. (72) The 1993 Agricultural Labor Act (No. 147 of 1993) further formalized these rights, and in particular gave farmworkers for the first time a right to organize. The 1966 Unemployment Insurance Act, extended to the agricultural sector in 1994, entitles workers to receive unemployment insurance funds should they be laid off. (73) However, seasonal or temporary workers employed for four months or less each year, were still largely excluded from these newly introduced protections.
After the ANC-led government took office in 1994, the new constitution included provision for comprehensive protection for labor rights. (74) The Labor Relations Act (No. 66 of 1995) then provided a new framework for the regulation of relations between all employers and employees in South Africa, including the commercial farming sector. The act also established the Commission for Conciliation, Mediation, and Arbitration (CCMA), an independent government-funded dispute resolution mechanism, whose governing body is formed of representatives of government, organized labor, and organized business. A new version of the Basic Conditions of Employment Act was passed in 1997 (No. 75 of 1997), which further extended the rights accorded to farmworkers, so that in most regards they now have the same rights as all other workers in South Africa. In particular, the new BCEA extended employment benefits to all employees working for twenty-four hours or more a month, on a pro-rata basis, thereby giving greater protection to seasonal and temporary workers. Domestic workers are still excluded from the act.
The 1998 Employment Equity Act brings into statutory effect the protections against discrimination included in the constitutional bill of rights, and similar provisions under international law, (75) and provides that no employer may unfairly discriminate against an employee on a comprehensive list of grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, color, sexual orientation, age, disability, religion, or HIV status. (76) The act defines harassment of an employee as a form of unfair discrimination. (77) Farmers (and other businesses) with more than fifty workers or a turnover of more than R2 million (U.S.$264,000) a year are required to submit "employment equity plans" to the government aimed at eliminating discrimination in the workplace. In the Free State, for example, about 700 of 7,000 commercial farmers fall in this bracket, and stated they would submit their plans in December 2000. (78) The Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 strengthened the Employment Equity Act in its intended aim to prohibit unfair discrimination. This legislation provides that "No person may subject any person to harassment," defined as "unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to sex, gender, or sexual orientation." (79)
Women farmworkers have a right to four months of maternity leave, beginning at any time from one month before the expected date of birth, under the 1997 Basic Conditions of Employment Act. (80) The payment of benefits during maternity leave is determined under the Unemployment Insurance Act, which restricts these rights to women who are employed for more than four months a year. (81) While her employer is not obliged to pay her normal wages while she is on maternity leave, a woman can claim a percentage of the wages from the Unemployment Insurance Fund (UIF), through the Department of Labor. (82) The UIF is financed by contributions from workers and employers, and to be eligible for UIF payments during maternity leave, an employee must have made contributions. (83) Domestic workers (including domestic workers on farms) are still excluded from the protections of the Unemployment Insurance Act, although proposed reforms to the act may bring them within its ambit. (84)
The Department of Labour is responsible for the enforcement of labor legislation, particularly the provisions of the BCEA, through its labor inspectorate. However, there is a shortage of inspectors, meaning that farms are seldom inspected in practice. The CCMA has responsibilities in relation to dismissals and other matters under the Labour Relations Act.
Although organization of agricultural labor has been legal since 1993, only between 12 and 14 percent of farmworkers are unionized. (85) As in other countries, the agricultural sector is difficult to organize, given low pay and problems of access and communication with workers who are geographically isolated and seldom have access to telephones or private vehicles. Where agricultural workers are successfully unionized, it tends to be among the employees of the big agri-businesses using factory-like methods, such as the poultry industry, especially those that are easily accessible to urban areas.
The two main
unions representing farmworkers are the South African Agricultural, Plantation,
and Allied Workers' Union (SAAPAWU) and the Food and Allied Workers' Union
(FAWU), both of them affiliated to the ANC-aligned trades union umbrella
body, the Congress of South African Trades Unions (COSATU). There are also
a host of smaller unions in different parts of the country, some affiliated
with the Pan Africanist Congress-aligned National Council of Trades Unions
(NACTU), others independent. Even the better established unions have not
much capacity, even on the most urgent matters affecting their members.
Howard Mbana of SAAPAWU, for example, noted to Human Rights Watch that
the union had adopted a resolution at its annual meeting to monitor violence
on farms with the aim of gaining greater exposure of the issue, but that
the union's financial and organizational weakness had prevented this from
being implemented effectively.
What is not
realised is that commercial farmers have been subject to more change in
the past ten years than any other group in this country. In addition to
adapting to the changes all other South Africans have made, they have also
lost all government support in the shape of tariffs, subsidies, cheap loans
and the like. They have also had to start making unemployment fund payments;
they have had to get used to trade union membership among their workers;
and they have had to adapt to the huge problems caused by [the] new land
Among employment sectors, the 1994 change of government has had perhaps the most profound effect on the working environment of the commercial farmer in South Africa. While those speaking for farmworkers and residents see far too little change in practice, farm owners and managers have had to adapt from a situation in which they received privileged treatment from government, including hefty subsidies and protective tariffs, to one in which subsidies and cheap finance have been largely ended, labor legislation extended to the agricultural sector, and trade tariffs progressively cut. At the same time, the protection of state security forces and the use of state violence to check challenges to white control of the land has been exchanged for a government commitment to land redistribution and laws protecting farm residents from arbitrary eviction. The depth of the change in attitude that has been required is illustrated by the results of a referendum conducted by the Transvaal Agricultural Union (TAU) in 1990, in which 94.52 percent of the 11,895 farmers who participated voted "yes" to the question: "Are you in favor of farmland being preserved for white ownership?" (88)
Following the transition to democratic government, organized agriculture also debated its new role. There were, and remain, differences in how to respond to the new dispensation, with divisions in particular between those who oppose the new government on almost all fronts, and those who favor engagement with the policy process and expansion of the representation of organized agriculture to include "emerging" black farmers. In 1999, the South African Agricultural Union, the umbrella body for the white farmers' associations (known as agricultural unions) in the four old provinces of South Africa, renamed itself Agri-SA, which now represents at national level its affiliated agricultural unions in the nine new provinces. The KwaZulu-Natal Agricultural Union (KWANALU), an affiliate of Agri-SA and traditionally more liberal, has merged with structures representing black farmers in the province and now represents 33,000 small scale black farmers as well as 3,700 farmers paying the full subscription to the organization (mostly white commercial farmers). KWANALU estimates it represents 60 to 80 percent of all commercial farmers, and probably 90 percent of the larger farms. (89) The Transvaal Agricultural Union, however, rejected this process, choosing to continue to organize its membership according to the old provincial boundaries and to resist, even if not explicitly, the process of racial integration. In May 2000, Agri-SA formally ended the affiliation of TAU with the umbrella body, on the grounds that TAU had failed to comply with the terms of Agri-SA's constitution since it was adopted in October 1998, and had not paid membership dues. (90) TAU claims that its members include 50 percent of all commercial farmers in the four northern provinces that make up the former Transvaal, approximately 6,000 farmers in all. Since March 2000, TAU has begun recruiting new members nationwide. (91)
As several government officials acknowledged to Human Rights Watch, the split in organized agriculture between Agri-SA and TAU, and the fact that many farmers are not members of either association, makes it difficult to communicate government policy and to find solutions to the problems of unequal land distribution. "Not all farmers are in the agricultural union, and we have a problem in reaching those who are not.... The people we speak to are more moderate, the real right wingers exclude themselves." (92) The threat posed by the "real right wingers" to the South African polity has faded since 1994, when at some points it seemed as though right wing violence might prevent the transition to majority rule from going ahead; nevertheless, right wing opposition to government policy remains a serious concern in some cases.
Agricultural Union now voices the concerns of the more conservative farmers
who choose to engage with organized agriculture. Their view is that:
white farmers are also under attack from a government in thrall to millions
of landless voters, many of whom say--as do their Zimbabwean brothers--that
whites 'stole' their land. This is of course a ludicrous assertion. When
whites came to southern Africa, there was little if any systematic cultivation
and certainly no agricultural industry to speak of. Western farming methods
allowed South Africa to become one of the world's six food-exporting countries.
Yet under the new government, assaults on farmers, and their property rights
and their very future are increasing.
Noting President Mbeki's failure openly to condemn land seizures in Zimbabwe, TAU asserts that "What happened illegally in Zimbabwe has become a legal process in South Africa. People now making demands for land are protected by South African legislation." (94) Speaking to Human Rights Watch, TAU representatives reinforced this view: "We need to change direction or there will be conflict on the ground, and the government seems simply not to care." (95) Reflecting this general approach, individual farmers have expressed their opposition to government legislation to Human Rights Watch and others: "The whole attitude in northern KwaZulu-Natal is that the farms belong to them [labor tenants]. A farm is something you bought with your own money but that is not actually yours. They talk of apartheid--this is apartheid at its best." (96)
More moderate representatives of commercial agriculture accept that land reform and labor legislation is necessary, though many still question the government's approach, believing that land redistribution should focus on creating new black commercial farmers. A survey commissioned by Agri-SA among commercial farmers in early 2001, found that 63 percent of those who responded thought that land reform was indispensable for peaceful coexistence in South Africa, and that 79 percent thought that commercial farmers are anxious to assist emerging black farmers. (97) Many perceive that current government policy is, however, to take land from the richest and give it to the poorest, who, they believe, will not use it profitably. "The land reform program needs clarity and realism. The government must not create expectations that are unrealistic in a global context." (98) Many farmers argue that land reform legislation has been misused in practice; and that the process of land restitution and redistribution has created uncertainty and contributed to a worsening of labor relations. "The land redistribution acts have played a major part in upsetting relations on farms, with the role of the NGOs and the Department of Land Affairs in creating a perception that land will be redistributed, an expectation among the people living on the land and in the townships that they will get land. The long process frustrates people on the ground, and then what happens is that the project of Land Affairs to get people to apply for land is creating tension on the farms." (99)
In direct opposition to the close connection to the land expressed by many black farm residents, many farm owners who spoke to Human Rights Watch see the relationship of a farm owner with those who live on his land and work for him as no different from the relationship of any other employer to his or her workforce. Many assert that a farm owner without further need for labor need not have any continuing relationship or obligation to those he formerly employed who have been resident on his land (sometimes for decades, or their families for generations). Yet at the same time, they note with dismay that their black tenants are increasingly asserting such an obligation. "Farmers with labor tenants find that they are just getting more and more cattle and overgrazing the land, and at the same time they are refusing to work any more for the farmer. And though the farmer can't let them stay on the farm if they are not working--if you don't work you should leave--there is no way except at high legal cost that you can evict them. It is a great frustration to the farmers." (100)
The agricultural unions blame the current government for what they see as a deterioration of the relations between farm owners and their workers--based, it seems, on a somewhat unrealistic evaluation of the relationship during the apartheid years. A representative of TAU commented to Human Rights Watch: "After 1994 it slowly started to happen that the good relations between laborers and farm owners were disturbed by all the legislation coming in with protection for the laborers. The cracks were starting to show. The farmer must protect himself financially and also he is seeing murders taking place so he is making other plans, for example to mechanize more. The laborer is becoming a burden and a threat, and there is now starting to be mistrust." (101) Accordingly, many farmers point out that the new legislation has reinforced rather than halted a trend among farmers to move away from employing individuals from families resident on and with a connection to the farm towards the use of labor hired from among people with no historic link to the land: "The law is the law, though people are unhappy about the way it is being implemented, and it is affecting the number of people employed, since farmers are doing away with labor because of all the changes. Farmers are moving to contract labor." (102)
There has been little structured dialogue between the agricultural unions representing farm owners and organizations representing farmworkers. Individual farm owners also often prefer to use consultants specializing in labor relations to manage interaction with farmworker unions or NGOs. The farm owners' unions tend to have hostile attitudes towards these groups: "These NGOs are fading now, but they represent the dregs of the old Marxist way of looking at everything.... It is their sort of irresponsible radicalism and encouragement to people to stage land invasions and the like which seeps down to such young people [those who carry out farm attacks]." (103) Land rights groups are accused of giving farm residents false information about their rights, and leading them to sign documents that they do not understand, "one of the main factors giving rise to conflicts." (104)
In May 2001, however, in an encouraging development, Minister of Labor Membathisi Shepherd Mdladlana announced an agreement brokered by the government among SAAPAWU, FAWU, the National African Farmers' Union, and Agri-SA, setting out a "vision for labor relations in agriculture." All parties agreed to the aim of ensuring that labor relations in the agricultural sector respect fundamental human rights and promote sound labor relations practices, skills development, compliance with health and safety standards, productivity improvements, and the effective management of HIV/AIDS on farms. Minister Mdladlana commended Agri-SA for its commitment to improving the conditions of workers on farms. (105)
subsidies to agriculture have been greatly decreased in recent years, and
are now among the lowest in world; a weak currency boosts exports but makes
input costs higher. (106)
Severe flooding and an outbreak of foot and mouth disease in 2000 added
to the pressures on commercial farmers--and even in 1988 it was estimated
that only a third of white-owned units were financially viable, the rest
When natural disasters are added to the changes brought about by government
policy reform, many farm owners feel themselves under siege. At the annual
congress of Agri-SA in 2000, the outgoing president of the farmers' union
called on government to "just leave us alone.... The camel's back is breaking.
Most politicians are so involved in populist politics that they don't realise
a cornerstone of the economy is crumbling because of government action."
dependence and common environment that they share suggest a sense of community
and intimacy on the farm. Yet this is a community which is highly divided
and stratified; the dimensions of apparently common interest are ultimately
shattered by the farmers' ownership of the land and the underlying relationships
of domination and subordination. The relationship is ultimately a relationship
between a master and a servant, between a white 'baas' and a black worker.
There are in the region of 60,000 farms in the commercial sector in South Africa, whose average size is around 1.3 thousand hectares, much the same as it was in 1988; by comparison, in the former homelands, 50 percent of households cultivate an area of less than one hectare, and only 1 percent have ten hectares or more under cultivation. (110) Livestock farms raising cattle for meat occupy about 80 percent of South Africa, though most are marginal in economic terms; dairy cattle and sheep raised for wool (in the Karoo) are also important; maize and wheat are grown in a number of areas, the most important being the "highveld" of the Free State and parts of Northern, North Western, and Mpumalanga Provinces; plantation agriculture raising sub-tropical fruit, cotton, and other crops has expanded over the last decade or so, especially in the "lowveld" of Mpumalanga and Northern Province; sugar is extensively grown in coastal KwaZulu-Natal; forestry for the paper industry is increasingly important in areas marginal for other crops; in the Western Cape, some of South Africa's best land, fruit and wine production dominates. Agriculture is a major earner of foreign exchange for South Africa, but today contributes less than 5 percent of gross domestic product. (111)
Formal employment in agriculture in South Africa is declining, though it still provides more than 10 percent of formal employment opportunities. Annual surveys of the commercial agricultural sector carried out by Stats SA, the government statistics office, indicate that the number of people employed in regular work on commercial farms declined by 15.7 percent, from 724,000 to 610,000, during the period 1988 to 1996. Other research suggests that employment of regular workers declined by a further 7.6 percent during the period 1994/95 to 1998/99, while employment of contract labor increased from 18.8 percent to 24.2 percent of the agricultural labor force over the same period. The total number of people employed fell by 25 percent (from 1.2 million to 914,000) during the 1988 to 1996 period, reflecting a greater absolute decline among those engaged in casual or seasonal work. (112) The position of farmworkers is especially precarious given the high unemployment rate in South Africa generally: "One morning when we were reporting to work the farmer said 'why do you look angry? The gate is open, there are plenty of other people who are looking for a job.' So we just said nothing and carried on." (113)
The 1996 census revealed that nine out of every ten Africans or coloreds working in the commercial agriculture sector were employees, but two in every five whites were employers. (114) Reflecting this division, 41 percent of Africans had no schooling at all and 60 percent had not completed primary education, whereas 77 percent of whites had obtained matric (school leaving certificate) or higher qualifications. (115) Among those working in agriculture, including in the former homelands, 79 percent of Africans, compared to 10 percent of whites, had monthly incomes of R500 (U.S.$66) or less. The average remuneration of employees in the commercial farming sector rose from R142 per month in 1988 ($40) to R524 in 1996 ($143); nevertheless, in 1996 the amount paid to Africans was on average 12 percent of that received by white employees and some were paid substantially less than the average, only a few tens of rand a month. "In-kind" payments formed a larger proportion of the remuneration paid to Africans (25 percent) than of any other population group, and a lower proportion of total remuneration in those provinces where average remuneration was highest. (116) A separate 1998 study of farmworkers in KwaZulu-Natal found that they earned an average R709.27 a month ($120), before deductions (R447.40 ($76) cash after deductions), plus the use of roughly eight hectares of land for grazing or cultivation. (117) Only in private households (which include domestic workers) is the distribution of occupations more inequitable than in the agricultural sector, in the sense that low-skilled, low-paid, work forms a high proportion (58 percent) of all jobs in agriculture. (118)
Farm workers fall into different categories. The most common category includes men and women living and working in permanent or temporary positions on farms. A second category consists of men and women employed on farms but living off-farm. Seasonal workers constitute yet a third category of farmworkers. Seasonal workers are mostly women and a few men recruited every year from rural areas, townships, or squatter camps to work on farms during the planting and harvesting seasons. They are often housed in farm compounds during the time of their employment. The last, and probably most vulnerable, group are migrant farmworkers from neighboring countries.
Working conditions on farms vary considerably, but in general they are poor. Rounding up a survey of employment trends in agriculture, Stats SA concluded that "in terms of key socio-economic variables, the situation of people employed in the agricultural sector tends to be less favorable than every other major sector of the economy." (119) A survey of conditions for farmworkers carried out by the Farmworkers Research and Resource Project (FRRP) in 1996 found that a majority of farmworkers earned less than the "minimum living level" defined by the Labour Market Commission. On 27 percent of the 196 farms surveyed there were no toilet facilities. (120) 56 percent of farms had no electricity in farmworkers' dwellings, and only 34 percent had taps for running water in the dwellings. It is usual for deductions from wages to be made where these services are provided. Schools were on average within ten kilometers of the farm, but doctors and clinics were on average more than twenty kilometers from farms. (121) Farmworkers have the lowest levels of literacy in the country. (122)
Food rations form a substantial part of the payment of agricultural workers across South Africa. Despite attempts to end the system, and in violation of international norms, some wine farms of the Western Cape still issue part payment of wages to their workers in wine, contributing to the chronic alcoholism prevalent in the wine-producing areas. (123) Also, some farm owners sell wine on credit to their farmworkers, promoting a cycle of debt for farmworkers who return a percentage of their wages to their employers as payment for the wine debt. (124)
Although farmworkers are now protected by labor legislation, Human Rights Watch repeatedly heard accounts of farmers flouting the rules relating to working hours, paid holidays or maternity leave, health and safety, or the right to organize. Health and safety regulations are often poorly observed during the use of agricultural chemicals: while Human Rights Watch did not systematically investigate this aspect of conditions on farms, many farmworkers reported that they were not trained in how to use pesticides and herbicides, nor given protective clothing. At one farm on the East Rand, Gauteng, for example, a woman farmworker reported, "Sometimes we have to run away because of the smell. People have been sick, especially the men, who are doing the spraying using the pesticides the most. One has died, one is coughing very badly. We have never seen anyone from the government to check health and safety; when the health inspector comes they just give him vegetables and he goes back. It is only when the police come to harass us for identity documents that we see any government person." (125)
the Department of Labour held public hearings in all nine provinces and
conducted other investigations for the purposes of making a "sectoral determination"
under the Basic Conditions of Employment Act in relation to the commercial
agricultural sector. A sectoral determination involves the setting of basic
conditions of employment, in this case in the agricultural sector; in particular,
the fixing of an agricultural minimum wage.
(126) The announcement of the sectoral determination was scheduled
for mid-2001. (127)
Most workers in commercial agriculture are male: according to government statistics, for every one hundred men employed in the sector in 1996, only forty-two women had jobs; that is, 70 percent of agricultural workers are male (by contrast, twice as many women as men work in subsistence agriculture in the former homeland areas). (128) However, accurate statistics on the number of women farm workers are difficult to obtain, because of the seasonal and temporary nature of the work done by most women. The situation of women on farms is more precarious than that of men. (129) When asked by Human Rights Watch about their terms and conditions of employment, common complaints from women farmworkers included: lower wages for women compared to men; no independent employment contracts for married women, whose security of employment and housing therefore is dependent on husbands; no housing for single women; and no paid maternity leave. (130)
The 1996 survey carried out by FRRP found that women received lower wages than men, and the differential was greatest at the lowest pay levels. (131) The tasks typically performed by women are regarded as less skilled, and women are more often seasonal or temporary workers. The most common tasks for women who work on farms include hoeing, weeding, picking fruits and vegetables, packing, sticking of labels, pruning branches on fruit or orchard trees, drying fruit, and domestic work. Tasks mentioned by women that only men perform include driving tractors or forklift trucks, carrying heavy stones, building, and tieing the bales. When asked by Human Rights Watch why they would not do other work apart from farm work, women's responses were commonly that they lacked education and skills to do any other work; lacked opportunities for alternative jobs; feared to take the risk of leaving the farm; or could not think of leaving the farm because it was their home. (132) Women farmworkers, like their male counterparts, have low levels of literacy. In the Western Cape, the majority of women started working on farms when they were as young as sixteen years old and have acquired a very low level of formal education--the highest standard of education on average being standard four (four years of primary schooling). (133) Most women living on farms have not done any other work other than farm, domestic, or child care work, or work as shop sales assistants on farms. (134) Women may also be paid lower wages compared to their male counterparts even in situations where they are hired for the same type of work or work of equal value. (135) In some cases, women get half of what men are paid as wages. (136) A woman working at a farm in the Levubu area of Northern Province told Human Rights Watch, "After deductions for accommodation, food, electricity, and other charges, men are paid R325 (U.S.$43) per month, and women get R250 ($33) per month for the same type of work." (137)
Housing is a particular concern. The majority of women farm workers are married or living with a partner. Others are single and living with their relatives. Some women farm workers do not live on farms permanently, because they are hired on a temporary or seasonal basis; indeed, some employers define only men as permanent employees. In many cases farm owners will hire a male worker, and his wife then works as a domestic servant or is recruited to carry out various tasks on a temporary basis. A majority of married women farmworkers do not have employment contracts in their own names, so that their jobs are dependent on those of their husbands. In addition, despite a Land Claims Court ruling that a woman working on a farm may not be evicted because her husband has lost his job, (138) in practice a woman farmworker's access to housing is still often determined by her relationship to a man. The provision of housing constitutes part of the remuneration package provided to male farmworkers and their families; thus, if her husband is dismissed from employment or dies, the woman's contract is regarded as automatically terminated, as well as her right to live on the farm.
Women in the Western Cape complained to Human Rights Watch that in cases where a woman works on the farm and the husband is not working on the farm, the woman is not given housing, yet if a man is employed on the farm, his family gets a house. (139) One single mother told Human Rights Watch, "I have been working for this farm for several years, but [I have] no house of my own. We were told houses are for married people, but many single men have been allocated houses. We single women are forced to stay with our parents or other relations whether we like it or not." (140) Where women farmworkers are migrants, the compound or hostel is standard; sometimes women are segregated from men in these circumstances, sometimes not. (141) Where seasonal workers are provided with accommodation on farms, the actual wages may be very low, since rent for housing is usually deducted from wages. (142)
is the denial of maternity leave. Although the law gives women a right
to four months' of maternity leave, some are literally forbidden to go
on maternity leave by their employers, being allowed only the absolute
minimum time to give birth; many others who are given permission to take
fail to obtain the benefits they are due from the Unemployment Insurance
Fund (UIF), either because their employers did not make the required contributions
or simply because women are unfamiliar with the steps they should take
to obtain UIF payments. (143)
A woman farmworker in the East Rand told Human Rights Watch, "if a person
gets pregnant, she will be given a week off from work after delivering
her baby. The following week, she has to be on the job."
(144) Another woman told Human Rights Watch:
There is no
time for maternity leave here. You go from the field to the hospital when
you are already experiencing labor pains. And you don't get paid for the
day you are away from work delivering your baby. So the choice is to come
back to work sooner, otherwise you lose your wages."
Children living on farms also face particular problems. Children living on commercial farms are more likely suffer from stunted growth and be underweight than any other children in South Africa, and only children in the former homeland areas have a higher likelihood of showing symptoms of wasting. (146) There are persistent reports of the continuing use of child labor for farm work, especially during school holidays, (147) and access to education is often difficult.
South Africa has signed a memorandum of understanding with the International Programme for the Elimination of Child Labor of the International Labor Organization to undertake a survey to compile comprehensive national statistics on child labor and has made significant efforts to bring national legislation into line with international labor standards. It ratified the ILO Convention on the Worst Forms of Child Labor (No. 182, adopted in 1999) in June 2000.
are facing a difficult and slow transition. Originally established under
the 1953 Bantu Education Act, they were explicitly designed to provide
only the most basic education appropriate to unskilled farm labor. Farmers
received a subsidy from the state for hosting and administering these schools.
The 1996 South African Schools Act repealed the Bantu Education Act, and
set out rules for the management of public schools on private land, which
required an agreement between government and the landowner setting out
the responsibilities of each side. Yet, despite efforts by Minister for
Education Kader Asmal to ensure that this process was completed by the
end of 2000 and the cooperation of the agricultural unions, it was estimated
that agreements had been concluded with only about 10 percent of the 4,500
farmers concerned by the year-end deadline. Meanwhile, farm schools in
several provinces remain under threat of closure--in the Eastern Cape,
for example, because of the failure of government to continue to pay subsidies
to farmers--and school age children in rural areas face long distances
to travel and poorly resourced schools when they reach their classrooms.
Many farmworkers are migrants from South Africa's neighboring countries, especially in Northern Province and Mpumalanga, where Zimbabweans and Mozambicans are often employed, and in the Free State, where Basotho play the same role. Unlike migrants in other sectors of the economy, in particular mining, many migrant farmworkers are women. (149) This pattern of migration has existed for many years, and some foreign farmworkers enter South Africa under bilateral agreements with their governments designed for the mining industry but also used by white farmers during the apartheid era. (150) However, many foreign migrant farmworkers enter or remain in South Africa without papers, and their status as "illegal aliens," or "prohibited persons," in the terms of South Africa's legislation, makes them a class of easily exploitable labor. There are numerous reports that undocumented migrant farmworkers are hired at a rate of just a few rands a day plus their food, housed in atrocious conditions, or deported just before their pay is due at the end of the month. (151) Farm owners regularly confiscate migrant workers' travel documents for the duration of their contract, in order to hold workers on the farm. (152)
The South African government's stated policy is that foreign workers should only be employed when no South Africans are available. Farmers, however, say that foreign labor is essential: South Africans do not want poorly paid farm work, despite high domestic unemployment, and commercial farms would be unable to function without foreign labor, especially for the lowest paid and seasonal jobs, such as harvesting. Women migrants are preferred over men for the same reason: men will not work for the wages offered. (153) By definition, it is difficult to quantify the numbers of undocumented foreigners working on South Africa's farms, but a 1996 survey found at least some non-South Africans on 30 percent of the 196 farms in four provinces that were surveyed. A substantial proportion of these had been working in South Africa for many years, in some cases decades, though the findings suggested increased employment of non-South Africans after 1990. (154) Farms along the borders clearly use foreign migrant workers to a greater extent, and there are often informal understandings with local police in these areas allowing for "farm IDs" issued by the farmer to protect workers from arrest as illegal aliens; or, conversely, for the police to arrest and deport workers who are troublesome, or before they are due to be paid.