Farmworkers and accommodation: a landowner's perspective
Land and ownership in South Africa is a topic charged with politics and emotion, yet there are legal avenues through which to negotiate the issue of farmworkers and housing that will benefit both landowner and employee.
What are the rights and responsibilities of landowners when it comes to accommodation and housing? And what assistance is available?
Almost 20% of South Africa's population is involved in agriculture as farmworkers (Census 2011). They are often subjected to poor housing. To improve housing security, the government passed the Extension of Security of Tenure Act, 62 of 1997 (ESTA) to provide security of tenure to farmworkers living on farms. This means that anyone who has lived on someone else's land since 4 February 1997 (with permission from the owner) has a legal right to continue living there. The Act also allows farmworkers' families to live with them and as well as to have access to water, health and education.
Huur gaat voor koop
The huur gaat voor koop principle applicable in South Africa means that an existing lease trumps a subsequent sale. Therefore, the new owner takes over from the seller as the landlord in terms of the lease and is bound by the terms of the lease as if they had signed the lease agreement as the landlord.
Prospective buyers should investigate who lives on the farm and should ask the seller to disclose the living arrangements of anyone on the property.
How to evict legally?
There may be various reasons to evict. For example, a house occupied by a retired couple may be needed for able-bodied workers or may be renovated for tourist accommodation as additional farm income.
Whatever the reasons, the law makes it very difficult for a new owner to evict. The process should follow a legal route and usually includes specialised legal advice, court orders, mediation and patience.
The Wine and Agricultural Ethical Trading Association (WIETA) has housing guidelines and offers training to land owners and workers. Stellenbosch University Law Clinic helps with legal aid, while Afriforum only gets involved in land grab issues.
Rights and responsibilities
Farm owners may be hesitant to improve housing as it could be construed as compromising their property rights. Conversely, occupiers largely uninformed of their rights, often live in the most dire conditions. These aspects intensify the complexities of sustainable housing development.
'Good contracts make good friends,' emphasises Marnus Kamfer of Afriforum.
'Depending on the details of a lease contract, most commonly the tenant may be responsible for the upkeep of the structure of the house. Responsibilities may be broadened depending on the tenant-lessee relationship and employment benefits,' he adds.
Owners wanting to subdivide and sell parcels of land to their employees, should be prepared for an often long and expensive process even with specialised legal support.
Author Marinda Louw Coetzee, Agri journalist