In terms of the Extension of Security of Tenure Act (Esta), no farmworker may be evicted without an order of the court. Esta protects anyone earning less than R5 000 a month who has permission, written or verbal, from the owner to live on a farm.
In theory it applies whether they work there or not, but in practice permission is generally only given to workers and their dependants. Esta sets out the general rights of a farmworker, such as the right to receive visitors and to have a family life, which includes living with a spouse, children and parents. The rights of workers, including tenure, do not change when a farm is sold.
Farmers may evict dismissed workers if employment was the only basis for allowing them to stay on the farm, but only if such dismissal is fair, according to procedures set out in the Labour Relations Act. Workers who believe their dismissal is unfair may approach the Commission for Conciliation, Mediation and Arbitration within 30 days.
Workers who resign voluntarily can be evicted. If a farmer signed a lease agreement with a farmdweller in addition to an employment contract, dismissal or resignation is not enough cause for eviction. If someone has lived on a farm for over 10 years and is over 60, or unable to work because of illness or disability, that person is regarded as a long-term occupier and cannot be evicted.
However, the law makes provision for six cases when a long-term occupier may be evicted: if the occupant assaults another person, intentionally damages farm property, threatens other dwellers, helps land invaders, breaches a condition of residence (such as not allowing people to stay in their homes without the landowner’s permission), or causes an irreparable breach in their relationship with the farmer (such as assaulting him or her). These cases also apply to workers who are not long-term occupiers.
The law distinguishes between people living on the farm before and after the legislation came into effect. When granting an eviction order after 4 February 1997, a court must apply additional criteria. These include deciding whether the agreement on which the owner relies for eviction is fair, whether there is suitable alternative accommodation for the evicted worker, how the order will affect the constitutional rights of those evicted, and likely hardships to be suffered.
A district officer of the Department of Land Affairs must conduct field visits to source the information, and report to the court on findings that can influence its decision. But studies have shown in some cases up to six out of seven eviction orders are default judgments because workers were ignorant of their right to legal representation and were not present in court.
