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Is a farmworker considered a labour tenant in terms of the Land Reform Act?

Labour tenancy arose out of landowners who allowed people to live on their farms, requiring them to work for little or no pay, and in return for the right to reside there they were allocated a portion of the farm for grazing and growing crops.

The Land Reform (Labour Tenants) Act No. 3 of 1996 (“the Act”) was enacted to ensure the adequate protection of labour tenants and their right to occupy and use that part of the farm which they occupied on 2 June 1995.

The term ‘labour tenant’ is defined in the Act 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 labour 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 labour to the owner or lessee of such or such other farm, including a person who has been appointed a successor to a labour tenant in accordance with the provisions of section 3(4) and (5), but excluding a farmworker.’

The Act intends to provide security of tenure of labour tenants; and a mechanism for the acquisition of land and rights on land by labour tenants and sets out the process whereby a labour tenant may apply to have such land legally transferred into their name.

The Application and Transfer Process

It was a jurisdictional requirement that a labour tenant lodge an application before 31 March 2001 with the Department of Rural Development and Land Reform (“the Department”) for an award of land, conferring ownership of the portion of land that he or she were occupying and using for cropping and grazing.

The Department must notify the landowner as soon as the application has been lodged. Thereafter the Department must publish the notice in the Government Gazette. If the landowner opposes the claim and no settlement is reached, the Department must, even if the parties had attempted to mediate, refer the claim to the Land Claims Court (“LCC”).

Adendorff N O and Another v Kubheka and Another

This was the crux of the issue which the Supreme Court of Appeal had to decide in this matter under case no.463 of 2020 [2022] ZASCA 29 (24 March 2022).

Mr Daniel Kubheka (“Kubheka”) resided with his wife and children on a portion of the farm Cadie in Kwa-Zulu Natal. He successfully launched proceedings in the LCC to have this portion of Cadie which he and his family used; resided on and occupied since 2 June 1995, transferred into his name.

He also sought an order that monies needed to compensate the owners of Cadie, the Adendorffs, for that portion of land be made available by the Department. The Department elected not to participate in the trial but instead gave a written undertaking that it would make money available to compensate the landowner if an award of the land was made by the LCC.

The LCC declared Kubheka to be a labour tenant in terms of s 33(2A) of the Act and, pursuant thereto, awarded him the portion of Cadie.

The owners of the property alleged that Kubheka was a farmworker and not entitled to the have a portion of Cadie transferred to him. The term ‘farmworker’ is defined in the Labour Tenants Act as: ‘. . . a person who is employed on a farm in terms of a contract of employment which provides that – (a) in return for the labour which he or she provides to the owner or lessee of the farm, he or she shall be paid predominantly in cash or in some other form of remuneration, and not predominantly in the right to occupy and use land; and (b) he or she is obliged to perform his or her services personally.’

The LCC accepted the evidence of Kubheka and his witnesses. The Adendorffs appealed the LCC’s decision to the Supreme Court of Appeal (“SCA”).

The SCA will only (in exceptional and very limited circumstances) interfere with a trial judge’s findings unless the SCA is satisfied that the trial judge was ‘plainly wrong’. It was apparent from the record that the versions of Kubheka and his witnesses and that of Dr Adendorff and his witnesses were mutually-destructive. However, the SCA found that there was no misdirection shown on the part of the LCC, thus the SCA
was precluded from interfering with the findings of the LCC.

Kubheka’s matter came before the LCC almost 16 years after the cut-off date for lodging applications in terms of s 17 of the Act. Officials in the Department were called to testify on behalf of Kubheka, and they produced a file containing incomplete documents. Contained in one of the documents is the identity number and name of Kubheka. The date of 23 January 2000 and a reference number KZN 3/4/126 are
also reflected on the document. The SCA found that the Department and its officials are the lawful and authorised custodians of the documents.

The owners received the s 17 notice at the beginning of March 2008 and responded by way of a letter dated 27 March 2008, wherein she denied that Kubheka was a labour tenant. On the probabilities, the Department would not have sent out a s 17 notice if an application was not lodged timeously.

On this score, the LCC correctly held that: ‘In my view this question can be decided solely on the basis of the documentation that is in existence. Contrary to Mr Du Plessis’s submission, I am of the view that the information sheet and the documentation presented by Mr Zungu accord with each other in all material respects. They both reflect Mr Kubheka’s full names and identity number. They both reflect that date as 23 January 2001. They both reflect the same reference number; KZN 3 4 126. It seems clear that the 5 page document in the series of document presented by Mr Zungu constitutes Mr Kubheka’s application form itself.’ 

The testimony of the officials of the Department demonstrates the shortcomings, lack of proper record-keeping, missing documents, and administrative blunders, where many applications have not been captured on the Department’s database. Blame cannot be placed at the door of Kubheka for any shortcoming or even the failure by
the Department to capture Kubheka’s application. The overwhelming evidence indicates on a balance of probabilities that Kubheka lodged his application before the cut-off date, 31 March 2001, for an award of land on Cadie. The Department had not gazetted the claim. This too, cannot be laid at the door of Kubheka.

Deciding the issue of just and equitable compensation to be paid by the Department to the owners, under s 23 of the Labour Tenants Act or alternatively an order under s 22 of the Labour Tenants Act, the SCA directed the parties to enter into negotiations in good faith with a view to settling the question of compensation as envisaged in s 23 of the Labour Tenant Act read with s 25 of the Constitution, and if negotiations failed to resolve the matter, then to approach the LCC for a determination.

The main problem faced by labour tenants and land owners, is that the Department is still processing their claims, gazetting claims and sending notices to landowners many years after the cut-off date. Furthermore, claims are being gazetted without the Department thoroughly investigating the claims to ensure that the claimants (labour
tenants) meet the strict criteria for labour tenancy as defined in the Act. It would be advisable for claimants to approach an attorney to assist them in dealing with the Department and if necessary, launch Applications to Court to have their claims adjudicated.

About the author

Aristidis Perivolaris

Senior Associate
BCom Law (University of Johannesburg, 2003)
LLB (University of South Africa, 2012)

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