Namibia’s farmworkers: still living on the margins?

THE agricultural sector in Namibia is one of the biggest employers in the country, but some often perceive it as one of the employment sectors where unfair labour practices are rife.

In addition, workers employed in this sector often have little access to direct daily information and formal education, and are amongst the lowest cash-wage earners in Namibia. As a result, farmworkers have limited employment opportunities outside the agricultural sector.Given these facts, it becomes clear why the situation of farmworkers could be described as a continuous ‘cycle of dependency’ and vulnerability.Viewed against these perceptions of farmworkers’ working and living conditions, farm worker evictions in Namibia have over recent years received growing attention from Government, non-governmental organisation (NGO) and commercial farming circles.Equally significant is the fact that farm worker evictions – which appear to be mainly the result of labour-related disputes – have increasingly become entangled as part and parcel of the national land reform debate.This became apparent when the former Prime Minister, Theo-Ben Gurirab, announced in February 2004 that Government was introducing the option of expropriating land to run concurrently with the ‘willing-buyer, willing-seller’ principle, also mentioned that “Government has witnessed with dismay and outrage how farmworkers are left destitute and dumped with their families and belongings on the roadsides by their former employers and, as a result, the Labour Act [No.6 of 1992] is flouted and unrest has arisen in certain parts of the country.”In the months following this announcement, the Government targeted a number of farms for expropriation that had reported labour-related disputes and from which farmworkers were evicted.But, despite assumptions that the socio-economic conditions and legal bargaining power of farmworkers are less favourable in comparison with other economic sectors, little research data exists on the rationale behind evictions and the effect evictions have on the livelihoods of farm worker communities.THE FINDINGS In search of clarity on some of these contentious issues raised in the above-mentioned introduction, the Legal Assistance Centre conducted a short study on farm owner/farm worker disputes.The aims of this study were to: * Review land and labour legislation and its impact on the land tenure security and labour rights of farmworkers in Namibia * Gather data from courts and investigate how farm worker tenure rights and livelihoods are impacted by court findings, and * Make recommendations, primarily by comparing the Namibian situation with South African legislation on securing farm worker tenure, and assessing the applicability of such legislation on integrating farmworkers more effectively into the current Namibian land reform programme.Our research into the Registrar’s files of the Windhoek High Court shows that, over the last five years, no cases where filed in the High Court that involved a farm owner applying for an eviction order against a farm worker.For example, two eviction cases that received prominent attention in the media, the Kalkpan (2002) and Arcadia Nord (2005-2006) cases, were dealt with in the Gobabis Magistrate’s Court.As far as could be determined, the only case that was dealt with in the High Court was the Ongombo West case brought in 2003.The matter was eventually settled out of court and the farm owner reappointed the workers.Due to time and other constraints, we only focused on gathering data from the Otjiwarongo, Gobabis and Keetmanshoop District Labour Courts that involved farm owner/farm worker disputes.The data show that the majority of cases involved unfair dismissal.The next most frequent complaint involved unpaid salaries or severance packages.All the complainants were farmworkers and, in most cases, male.Technically, complainants could apply for legal aid from the Government; but the Clerks of the District Labour Courts to whom we spoke during our visits stated that the application process was very cumbersome, and that most complainants found it difficult to understand the court procedures.Furthermore, there are many shortcomings regarding accessibility when it comes to aggrieved parties making use of the District Labour Courts.It appears that most farm worker complainants had no legal presentation when a case went to the District Labour Court.Many cases were removed from the court roll, an indication that cases in the District Labour Courts either takes too much time to conclude, or that the parties involved in a dispute simply lose interest in pursuing their cases when they do not receive legal aid from the Government.A person applying for legal aid should earn an income of N$1,500 or less per month, including deductions for income tax and social security.An applicant is required to submit a recent payslip as proof of income.Applications for legal aid can be made through any Magistrate’s Court office, meaning that one does not need to come to the Legal Aid Directorate in Windhoek in person to do so.The Director of Legal Aid is responsible for selecting a legal representative for the applicant, and takes into consideration the merits of the particular case as well as whether the applicant is employed or not.The Director informs the applicant in writing about the outcome of his/her application.If the application is approved, the Directorate acquires the services of a legal practitioner, who could either be selected from private practice or from the Government’s attorneys.The applicant is then informed as to who will represent him/her in the matter at hand.Clerks of Local Magistrate’s Courts often assist legal aid applicants who live outside Windhoek in submitting their applications to the Legal Aid Directorate.The current backlog in processing these applications in Windhoek could, however, be seen as impacting negatively on complainants in respect of them receiving a fair trial in District Labour Courts.Moreover, evicted farmworkers to whom we have spoken in the Gobabis and Otjiwarongo areas, complained that they often did not understand the proceedings at court.To compound matters, in some cases the financial circumstances of those who have been evicted do not allow them to travel to court to attend their hearings.For example, the research team spoke to some evicted farmworkers who were currently living in the road corridor next to the farm of their former employ, i.e.approximately 100 km from the District Labour Court where they were required to attend court hearings.The court files we investigated do not clearly show how many of the farmworkers that were involved in labour disputes left or remained on the farm owner’s property after the case was resolved.It could be assumed that, in cases where the relationship between owner and worker had irretrievably broken down, the worker was left with no other option but to leave the property in search for other work or another place to stay.Furthermore, farmworkers who have lost their work due to labour-related disputes or the fact that a farm has changed ownership also do not receive any preferential treatment from the Ministry of Lands and Resettlement for resettlement, despite the fact that they should be regarded as emergency cases.RECOMMENDATIONS: * Strengthen legal assistance to farmworkers Clerks of the Court indicated that applications for Government Legal Aid were being processed at a painstakingly slow rate.Taking this factor into consideration, as well as the fact that farmworkers lack the financial resources to defend their cases in court, it perhaps becomes clearer why so many cases were either not heard or were simply removed from the court roll.In view of this fact, it is recommended that the Government should improve its legal aid support to persons such as farmworkers who have a low income.* Prioritise farmworkers as a beneficiary group in the resettlement programme The Government lacks a clear and comprehensive support policy on strengthening farmworkers’ rights of tenure.More significantly, the Government’s land reform programme ha
s failed to strengthen and secure such rights for farmworkers.Farmworkers should not only be included in the land reform programme, but should become a primary and priority target group in land reform projects.This view is supported by the fact that farmworkers already have the necessary skills and therefore the potential to become successful farmers.* Strengthening the role of the Directorate of Labour Services The Ministry of Labour and Social Welfare should have a representative on Regional Resettlement Committees in order to represent dismissed farmworkers who have cattle for resettlement, and make appropriate recommendations for them.The Ministry also needs to deploy more Labour Relation Officers to the Regions in order to carry out the work effectively.Labour Relations Officers should also be able to make recommendations to Regional Resettlement Committees for former farmworkers to receive preference when it comes to the allocation of land for resettlement.* Act justly and equitably The ‘just and equitable’ principle features prominently in South Africa’s Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.It is recommended that this principle should also feature in Namibian legislation.Where private individuals and organs of State apply for the eviction of unlawful occupiers, courts should only grant eviction orders if the principle of justness and equitability is applied after considering all the relevant circumstances.These should include circumstances under which the unlawful occupier occupied the land, the period of such occupation, and whether suitable alternative accommodation or land is available to the unlawful occupier.In addition, the rights and needs of the elderly, children, persons with disabilities, and households headed by women also need to be taken into consideration.* Provide suitable alternative accommodation Regional Councils should, in collaboration with the Ministries of Lands and Resettlement and Labour and Social Welfare, play a more prominent role in their respective Regions to provide rudimentary accommodation to evicted farmworkers who have consequently become illegal occupants in corridors along district farm roads.The availability of suitable alternative land has to be considered before an eviction order is granted.Such legislation would put the onus of providing suitable alternative land on the State.* Urgent eviction proceedings The Court should only grant an urgent eviction order if it is satisfied that there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not evicted from the land.Such circumstances would usually include the likelihood that hardship to the owner or any other affected person, exceeds the likely hardship to the unlawful occupier against whom the order is sought.CONCLUSION Many shortcomings exist regarding people’s access to District Labour Courts and it is of little surprise that this court system will be phased out once the Labour Act, 2004 (No.15 of 2004) replaces the Labour Act, 1992 (No. 6 of 1992).For example, our research shows that many cases were removed from the court roll, which might be an indication that cases being heard in the District Labour Courts either take too long to conclude, or that parties involved in a dispute simply lose interest in continuing with their cases.A further issue that came up during the study, but was not necessarily directly addressed by it, was how the introduction of secure land tenure legislation for farmworkers would impact on the concept of land ownership.Influenced by Western perspectives of ownership, ownership and property rights in Namibia are strongly associated with private and individual ownership of property.The question that might arise is whether introducing legislation that secures farmworkers’ rights of tenure would result in a change in the concept of land ownership or not.In light of the need for land reform in Namibia, an ideal solution would perhaps be found in introducing legislation that, on the one hand, seeks to protect the rights of an owner of property and, on the other, creates the circumstances within which the rights of an occupier can be established.In other words, a balance has to be struck between the proprietary rights of the owner, and the basic socio-economic and human rights of the farm worker through secured rights of tenure.As a result, farmworkers have limited employment opportunities outside the agricultural sector.Given these facts, it becomes clear why the situation of farmworkers could be described as a continuous ‘cycle of dependency’ and vulnerability.Viewed against these perceptions of farmworkers’ working and living conditions, farm worker evictions in Namibia have over recent years received growing attention from Government, non-governmental organisation (NGO) and commercial farming circles.Equally significant is the fact that farm worker evictions – which appear to be mainly the result of labour-related disputes – have increasingly become entangled as part and parcel of the national land reform debate.This became apparent when the former Prime Minister, Theo-Ben Gurirab, announced in February 2004 that Government was introducing the option of expropriating land to run concurrently with the ‘willing-buyer, willing-seller’ principle, also mentioned that “Government has witnessed with dismay and outrage how farmworkers are left destitute and dumped with their families and belongings on the roadsides by their former employers and, as a result, the Labour Act [No.6 of 1992] is flouted and unrest has arisen in certain parts of the country.”In the months following this announcement, the Government targeted a number of farms for expropriation that had reported labour-related disputes and from which farmworkers were evicted.But, despite assumptions that the socio-economic conditions and legal bargaining power of farmworkers are less favourable in comparison with other economic sectors, little research data exists on the rationale behind evictions and the effect evictions have on the livelihoods of farm worker communities. THE FINDINGS In search of clarity on some of these contentious issues raised in the above-mentioned introduction, the Legal Assistance Centre conducted a short study on farm owner/farm worker disputes.The aims of this study were to: * Review land and labour legislation and its impact on the land tenure security and labour rights of farmworkers in Namibia * Gather data from courts and investigate how farm worker tenure rights and livelihoods are impacted by court findings, and * Make recommendations, primarily by comparing the Namibian situation with South African legislation on securing farm worker tenure, and assessing the applicability of such legislation on integrating farmworkers more effectively into the current Namibian land reform programme.Our research into the Registrar’s files of the Windhoek High Court shows that, over the last five years, no cases where filed in the High Court that involved a farm owner applying for an eviction order against a farm worker.For example, two eviction cases that received prominent attention in the media, the Kalkpan (2002) and Arcadia Nord (2005-2006) cases, were dealt with in the Gobabis Magistrate’s Court.As far as could be determined, the only case that was dealt with in the High Court was the Ongombo West case brought in 2003.The matter was eventually settled out of court and the farm owner reappointed the workers.Due to time and other constraints, we only focused on gathering data from the Otjiwarongo, Gobabis and Keetmanshoop District Labour Courts that involved farm owner/farm worker disputes.The data show that the majority of cases involved unfair dismissal.The next most frequent complaint involved unpaid salaries or severance packages.All the complainants were farmworkers and, in most cases, male.Technically, complainants could apply for legal aid from the Government; but the Clerks of the District Labour Courts to whom we spoke during our visits stated that the application process was very cumbersome, and that most complainants found it difficult t
o understand the court procedures.Furthermore, there are many shortcomings regarding accessibility when it comes to aggrieved parties making use of the District Labour Courts.It appears that most farm worker complainants had no legal presentation when a case went to the District Labour Court.Many cases were removed from the court roll, an indication that cases in the District Labour Courts either takes too much time to conclude, or that the parties involved in a dispute simply lose interest in pursuing their cases when they do not receive legal aid from the Government.A person applying for legal aid should earn an income of N$1,500 or less per month, including deductions for income tax and social security.An applicant is required to submit a recent payslip as proof of income.Applications for legal aid can be made through any Magistrate’s Court office, meaning that one does not need to come to the Legal Aid Directorate in Windhoek in person to do so.The Director of Legal Aid is responsible for selecting a legal representative for the applicant, and takes into consideration the merits of the particular case as well as whether the applicant is employed or not.The Director informs the applicant in writing about the outcome of his/her application.If the application is approved, the Directorate acquires the services of a legal practitioner, who could either be selected from private practice or from the Government’s attorneys.The applicant is then informed as to who will represent him/her in the matter at hand.Clerks of Local Magistrate’s Courts often assist legal aid applicants who live outside Windhoek in submitting their applications to the Legal Aid Directorate.The current backlog in processing these applications in Windhoek could, however, be seen as impacting negatively on complainants in respect of them receiving a fair trial in District Labour Courts.Moreover, evicted farmworkers to whom we have spoken in the Gobabis and Otjiwarongo areas, complained that they often did not understand the proceedings at court.To compound matters, in some cases the financial circumstances of those who have been evicted do not allow them to travel to court to attend their hearings.For example, the research team spoke to some evicted farmworkers who were currently living in the road corridor next to the farm of their former employ, i.e.approximately 100 km from the District Labour Court where they were required to attend court hearings.The court files we investigated do not clearly show how many of the farmworkers that were involved in labour disputes left or remained on the farm owner’s property after the case was resolved.It could be assumed that, in cases where the relationship between owner and worker had irretrievably broken down, the worker was left with no other option but to leave the property in search for other work or another place to stay.Furthermore, farmworkers who have lost their work due to labour-related disputes or the fact that a farm has changed ownership also do not receive any preferential treatment from the Ministry of Lands and Resettlement for resettlement, despite the fact that they should be regarded as emergency cases.RECOMMENDATIONS: * Strengthen legal assistance to farmworkers Clerks of the Court indicated that applications for Government Legal Aid were being processed at a painstakingly slow rate.Taking this factor into consideration, as well as the fact that farmworkers lack the financial resources to defend their cases in court, it perhaps becomes clearer why so many cases were either not heard or were simply removed from the court roll.In view of this fact, it is recommended that the Government should improve its legal aid support to persons such as farmworkers who have a low income. * Prioritise farmworkers as a beneficiary group in the resettlement programme The Government lacks a clear and comprehensive support policy on strengthening farmworkers’ rights of tenure.More significantly, the Government’s land reform programme has failed to strengthen and secure such rights for farmworkers.Farmworkers should not only be included in the land reform programme, but should become a primary and priority target group in land reform projects.This view is supported by the fact that farmworkers already have the necessary skills and therefore the potential to become successful farmers. * Strengthening the role of the Directorate of Labour Services The Ministry of Labour and Social Welfare should have a representative on Regional Resettlement Committees in order to represent dismissed farmworkers who have cattle for resettlement, and make appropriate recommendations for them.The Ministry also needs to deploy more Labour Relation Officers to the Regions in order to carry out the work effectively.Labour Relations Officers should also be able to make recommendations to Regional Resettlement Committees for former farmworkers to receive preference when it comes to the allocation of land for resettlement.* Act justly and equitably The ‘just and equitable’ principle features prominently in South Africa’s Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.It is recommended that this principle should also feature in Namibian legislation.Where private individuals and organs of State apply for the eviction of unlawful occupiers, courts should only grant eviction orders if the principle of justness and equitability is applied after considering all the relevant circumstances.These should include circumstances under which the unlawful occupier occupied the land, the period of such occupation, and whether suitable alternative accommodation or land is available to the unlawful occupier.In addition, the rights and needs of the elderly, children, persons with disabilities, and households headed by women also need to be taken into consideration.* Provide suitable alternative accommodation Regional Councils should, in collaboration with the Ministries of Lands and Resettlement and Labour and Social Welfare, play a more prominent role in their respective Regions to provide rudimentary accommodation to evicted farmworkers who have consequently become illegal occupants in corridors along district farm roads.The availability of suitable alternative land has to be considered before an eviction order is granted.Such legislation would put the onus of providing suitable alternative land on the State.* Urgent eviction proceedings The Court should only grant an urgent eviction order if it is satisfied that there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not evicted from the land.Such circumstances would usually include the likelihood that hardship to the owner or any other affected person, exceeds the likely hardship to the unlawful occupier against whom the order is sought.CONCLUSION Many shortcomings exist regarding people’s access to District Labour Courts and it is of little surprise that this court system will be phased out once the Labour Act, 2004 (No.15 of 2004) replaces the Labour Act, 1992 (No. 6 of 1992).For example, our research shows that many cases were removed from the court roll, which might be an indication that cases being heard in the District Labour Courts either take too long to conclude, or that parties involved in a dispute simply lose interest in continuing with their cases.A further issue that came up during the study, but was not necessarily directly addressed by it, was how the introduction of secure land tenure legislation for farmworkers would impact on the concept of land ownership.Influenced by Western perspectives of ownership, ownership and property rights in Namibia are strongly associated with private and individual ownership of property.The question that might arise is whether introducing legislation that secures farmworkers’ rights of tenure would result in a change in the concept of land ownership or not.In light of the need for land reform in Namibia, an ideal solution would perhaps be found in introducing legislation that, on the one hand, seeks to protect the rights of an owner of property and, on the other, creates the circumsta
nces within which the rights of an occupier can be established.In other words, a balance has to be struck between the proprietary rights of the owner, and the basic socio-economic and human rights of the farm worker through secured rights of tenure.