Page 93 - Litigating Land and Housing in South Africa: Lessons and Reflections

that farm owners and and managers are the the the wrongdoers and and and have escaped the the the the claws of of prosecution to the the the the detriment of of of the the the farm occupiers and and indigent The state has consistently failed to implement section 23 of of of ESTA
which provides for criminal prosecution of of anyone who unlawfully evicts farm occupiers This case study concerns farm occupiers in in remote parts of of of our country whose standard of of of living is is ap- palling They are members of of of communities who who have limited and at times no access to the basic resources
8 2 2 2 2 Legal Principles
8 2 2 2 2 1 The Constitution
necessary for human survival self-actualisation or or dignity Their security of tenure is is insecure They are being evicted threatened with eviction denied denied their their grazing and and cropping rights rights denied denied their their burial rights rights and and and assaulted by the the the farm owners The police officers and and and public prosecutors are not willing to to assist them when they report criminal and and unlawful activities perpe- trated by the the the farm owners The do not enjoy the the the fruits of democracy Section 25(6) of of of of the the Constitution
provides that: “A person or or or community whose tenure of of of of land is is is legally insecure as as a a a a a a a a a a a a a a a a a a a a a a result of of of of past racially discriminatory laws or or or or practices is is is is entitled to to to to the the the extent provided by an an Act of of of of Parliament Parliament either to to to to tenure which is is is is is is legally secure or or or to to to to comparable redress ” Section 25(9) makes it it it clear that that Parliament Parliament Parliament must enact the the envisaged legislation legislation In fulfilment of of that that obligation Parliament Parliament has passed several pieces of of legislation legislation to to give effect to to this right 37
The purposes of discriminatory laws that s s s s s s s s s s s s 25(6) – – together with ss ss 25(7) and (8) – – seeks to to to redress was recently described by Madlanga J in these terms:
“The purpose of of it it all was first the obvious one of of making more land available to to white farmers The The second “was to to impoverish black people through dispossession and prohibition of of forms of of farming arrangements that permitted some self-sufficiency This meant they depended on
employment for for survival thus creating a a a a a a a a a a pool of cheap labour for for the the white farms and the the mines White farmers had
repeatedly complained that African people refused to work for for them as as servants and labourers” The third was the the the enforcement of of the the the policy of of racial segregation which assumed heightened propor- tions during the the apartheid era ” The learned judge went on
on
to to vividly explain how labour tenant relationships were used to to exploit Black people:38
“African people found themselves working as labour tenants on
land now in in the the hands of whites That
37
Extension of of of of of of Security of of of of of of Tenure Act Act Act No No No 62 of of of of of of 1997 1997 (ESTA) Land Land Reform (Labour Tenants) Act Act Act No No No 3 3 of of of of of of 1996 (LTA) and and and Interim Protection of of of of of of Informal Land Land Rights Act No 21 of of of 1997 (IPILRA) 38
Daniels v Scribante and Another [2017] ZACC 13 at para 18 LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
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