Picture: THULANI MBELE
Picture: THULANI MBELE

In June this year, a farm worker from the Matzikama area in the Western Cape told the story of his family’s gravesite. Like many farm workers across the country, generations of his family have worked, lived and been laid to rest on the farm on which he works and lives.

One day, the owner of the farm decided to build a rugby field over the graves of his deceased family members, permanently depriving him and his family from the ability to visit their graves. He relayed how the rugby players will often claim that when playing on those fields they gain strength from the graves beneath.

The Extension of Security of Tenure Act (ESTA) is known as a legal mechanism to protect farm dwellers from unlawful and arbitrary evictions. The act, however, goes far further than this. Its provisions are designed to protect and promote the dignity of farm dwellers and can be applied to farm dwellers’ daily lives — to protect them from deplorable working and living conditions and from the abuse of power.

Recognising the power relations between farm dweller and owner is critical to understanding why farm dwellers remain one of SA’s most marginalised groups. Imagine a world in which your access to water, electricity, income, shelter and whether or not you can live with your family in keeping with your religious and cultural beliefs is in the control of one person: your employer.

This unequal power relation has its roots in the formalised land dispossessions implemented by both colonial and apartheid regimes. The inability to own land forced many families into migrant labour and deplorable working and living conditions in order to survive. This is the legacy that ESTA attempts to correct through the involvement of the courts.

By protecting a range of rights, ESTA is largely concerned with securing farm dwellers’ tenure and their rights to use and enjoy the property on which they reside, in the same way they would if they owned the property themselves. To give effect to this principle, ESTA protects a farm dweller’s right to access basic services. In practical terms, this means that farm owners must ensure farm dwellers have reasonable access to basic services.

The court ordered them to implement a plan to ensure farm dwellers are provided with access to safe water, sanitation and refuse collection

A farm owner, despite owning the property on which farm dwellers reside, cannot interfere with a farm dweller’s right to services by cutting off their access to any basic service.

This was affirmed this year by a high court in Pietermaritzburg, which held, in a scathing judgment, that “the ongoing and persistent failure” of both the farm owners and the municipality in providing access to basic services to 200 farm dwellers were inconsistent with the constitution and that forcing them to relieve themselves in the veld and to collect and carry their drinking and washing water was an affront to their dignity.

The court ordered them to implement a plan to ensure farm dwellers are provided with access to safe water, sanitation and refuse collection. 

Farm owners often disconnect farm dwellers’ water and electricity to coerce them into “voluntarily” leaving the farm, an unlawful practice known as a constructive eviction. Some farm owners charge farm dwellers a flat rate for using water or electricity, giving farm dwellers little to no control over how much they actually pay for services.

While it is illegal for farm owners to profit from farm dwellers as employees or as tenants, many farm dwellers are unaware that legal recourse is possible.

Family life on the farm

ESTA also protects a farm dweller’s right to maintain a family life in accordance with their cultural and religious beliefs. Under the law, a farm dweller should not be prevented from living with their children, spouses or close relatives as this infringes their dignity as well as the dignity of their families. Women and children who live on farms are equally entitled to access to tenure security and to basic services. These rights are particularly important to women, who are disproportionately affected by inadequate access to services because farm work is less secure for women, their work is undervalued and yet they remain primarily responsible to care for and raise children.

Women working on farms have their autonomy infringed by both the farm owners and their male spouses or family members, meaning that they require specific consideration when implementing ESTA protections. Thus, one cannot truly give effect to one ESTA right, without ensuring that all farm dweller’s rights have been adequately secured. 

The importance of the right to a family life was re-affirmed in by the Supreme Court of Appeal (SCA) in a matter concerning the rights of farm dwellers to bury and visit the graves of their deceased relatives. In the 2019 decision, the SCA reminded the parties and the general public that when it comes to ESTA, what matters is that it was created “to grant the occupiers the dignity to which they were deprived under apartheid”. This dictum importantly emphasises the perspective needed to apply ESTA correctly.

One of the greatest obstacles to ESTA’s implementation is a lack of awareness of its breadth. Understanding the purpose, intention and spirit of ESTA protections, beyond protection against unlawful eviction, is particularly important because farm dwellers are acutely atomised, living in remote and secluded areas, far from major cities, and public scrutiny.  

Through the lens of redressing past injustices, ESTA’s provisions are about the whole being greater than the sum of its parts; a whole in which farm dwellers are able to live dignified lives in which they are treated with humanity and respect.

• Singh is a research intern at the Socio-Economic Rights Institute of SA.