Land Use Management Bill [B27-2008]: deliberations & adoption

Meeting report

Land Use Management Bill: Deliberations and adoption
Department of Land Affairs (DLA) Briefing
Mr Sunday Ogunronbi, Director:Land Planning and Property Law, DLA presented a detailed submission of the amendments made to the Bill on a clause-by-clause basis. Mr Ogunronbi referred to the electronic copy and explained that all new insertions were in red, underlined and in capitals. Deletions were crossed out and in the standard colour.

Preamble
Mr Ogunronbi explained that the preamble was inserted into the Bill to offer a motivation and background for why the Bill was framework legislation and intervention legislation in terms of section 44(2) of the Constitution. It alluded to the concurrent mandate of provincial and national government to legislate in this area and the need for national legislation to attend to certain specific social ills. The preamble was based also on the Constitution’s Section 24 (environmental issues), Section 25(5) (fostering access to land for citizens) and Section 26 (right to adequate housing).

Definitions clause
In the definition clause 1, an insertion had been made into the Bill to refer to the Intergovernmental Relations Act, because it had been mentioned in a number of places in the Bill.

Objects clause
Certain additions were made to the objects of the Bill. The phrase “sustainable and efficient use of the land” was inserted.

There were amendments to the Bill that were meant to consolidate provisions dealing with jurisdiction to achieve neatness and textual improvement by the merging of sections.

In the Objects clause there was also now reference to the Department of Land Affairs (DLA) achieving ‘sustainable and efficient use of land’, in recognition of the importance of land as a limited resource.

Clauses 5, 6 and 7
In clauses 5, 6 and 7 the DLA wanted to ensure that when the Minister made norms and standards, or when the provincial and national state organs interacted with local municipalities, or when the provinces made their legislation, that the three phases would work harmoniously within the spirit and intentions of the Intergovernmental Relations Framework Act (IRFA). Amendments to Clauses 5, 6 and 7 therefore referred to the IRFA.

Clause 8
In response to comments received, the DLA proposed in clause 8(2) that when it came to the question of appointing members of the Municipal Land Committee, they must be appointed by or under the general direction of the executive authority of the municipality, which would then allow the executive authority to design the framework if they chose not to do it themselves. The DLA was of the view that they could then delegate this or design a protocol for the appointment of members of the Municipal Land Committees.

Mr Ogunronbi explained that this was done in response to comments that there should be some flexibility in the manner of appointments of these members.

Clause 9
Clause 9 spoke to the composition of the Municipal Land Committee, in response to the development around unified public service. The DLA proposed that “employees of the municipalities” be used as opposed to the “senior staff members” initially used in the Bill.

The DLA also amended clause 9(1)(b) to remove the stipulation “at least three of whom must posses the appropriate qualifications and skills and experience in land use and land use and management’. This was because it was already dealt with elsewhere.  Mr Ogunronbi acknowledged that this had been an error. Similarly, clauses 9(2) and 9(3) were not need because they were phrases to deal with candidates of “voting and non- voting members”, when already clause 62 of the Bill dealt with technical advisors, who were non- voting members of the Municipal Land Committee. Therefore the Department proposed that the Bill also be amended to remove sub clauses 9 (2 ) and (3), leaving only 9(1). 

Clauses10 and 11
On clause 10, the DLA made simple textual improvements to the Bill.

DLA also proposed the merger of certain principles of clause 10 and 11, since clause 10 had spoken to qualification for membership and clause 11 was about the disqualification from  membership of the Committee. The DLA believed that the most important qualification was contained in clause 10(1) – setting out that one could or would be a member if satisfying conditions as set out. Subclause (2) would then refer to what a member should not be, or what conditions would disqualify a member. The DLA then foresaw two scenarios in clause 11. A person could be disqualified before appointment, or somebody who had been appointed in terms of Clause 10 could also be disqualified after appointment because of elevation to the Cabinet or any of the grounds listed in the original Clause 11.

Mr Ogunronbi therefore proposed that the content of the original clause 11 therefore be lifted, and that the wording now read :  ‘a member cannot be appointed as a member of the Committee or, if appointed, remain as a member if he/she is ..” and then the conditions would be set out. That would be the second part of clause 10.

Clause 13
Commenting on clause 13, Mr Ogunronbi said that the DLA proposed that this clause be removed. Clause 36 of the Bill was the general clause on jurisdiction. Clauses 13, 25 and 65 of the Bill also spoke about jurisdiction. The Department thought that, rather than have four different clauses to deal with jurisdiction of the Land Use Regulators, it would be neater to consolidate all of them in one single clause with sub-clauses. Therefore, the contents of Clause 13 would be made into a sub clause under the existing Clause 36. There would have to be renumbering of the Bill.

Clause 16
Mr Ogunronbi said that the DLA also proposed to remove this clause. Textual improvements were proposed in Clauses 10 and 11, which would affect Clause 16. This had dealt with the criteria if somebody wanted to vacate membership of the municipal land committee. The Department was of the view that this point was already included in the proposed amendment to Clause 10, dealing with appointments and disqualification of members. 

Clauses 22 and 23
Mr Ogunronbi said that the Department felt that, just as it had collapsed the different portions of clauses 10 and 11 and 16 into one clause,  it would effect similar changes to clauses 22 and 23. These dealt with membership of the Tribunal. For consistency of presentation, therefore, clauses 22 and 23 and clause 26 would be collapsed. The clauses would of course also have to be renumbered, following the removal of clauses as outlined already. Therefore what had been in clause 22 would become the new Clause 19(1). The content of the former Clause 23 would then become the new Clause 19 (2). Mr Ogunronbi then noted that a person could not be appointed as a member of the Tribunal or, if appointed, remain a member if that person became disqualified on certain grounds as set out. This was not a substantive amendment, merely a re-arrangement of content.

Clause 25
For the same reasons that clause 13 had been removed, because its content was now incorporated elsewhere, clause 25 would be removed, and the content would be incorporated as a sub-clause of Clause 36

Clause 65
Mr Ogunronbi said that his remarks in relation to clause 25 applied equally to clause 65.

Clauses 35 and 36
Mr Ogunronbi dealt with the details of amendments proposed to clause 35(1) and 35(6), on restrictive conditions, and those provisions relating to interactions between National, Provincial and Municipal interests. He referred to the contributions made by the University of the Western Cape’s Community Law Centre (UWCCLC), which had noted that the current formulation of clause 36 was unsatisfactory, with regard to the demarcation of jurisdiction between, municipal, provincial and national state organs. Mr Ogunronbi suggested a new sub-clause (2) for Clause 36, which would empower the Minister to make regulations that would allow the other State organs to act, in terms of their jurisdiction as land regulators, in instances where no power had been conferred under the current Bill.

Clause 37
Clause 37 dealt with jurisdiction where provincial or national interest was affected. Reference had been made to a provincial growth and development strategy or similar instrument. The same clause had also made reference to the national development perspective. During the public hearings, the UWCCLC had raised the concern that if the original formulation was left to the issue of a provincial growth and development strategy (which was not legally defined or empowered in terms of any law by Parliament or any Provincial legislation) there was a danger that the Provinces would be afforded a “blank cheque” to decide what should go into a provincial development strategy. This strategy would then be superior to and override municipal matters. Therefore, to be safe, the Department suggested that such matters should be limited to matters that were within the functional competence of the Province in terms of the Constitution. Therefore the reference to national development perspective should be removed. Instead, it was suggested that matters of national interest should be clearly stated to be those that were within the functional competence of the Executive in terms of the Constitution. This would attend to the possibility of intrusion into the mandate of other spheres, and would give more clarity.

Clause 44
Further amendments were also detailed in relation to clause 44, which dealt with the criteria for deciding applications by the land regulator, because of earlier amendments to the objects of the Bill to promote sustainable land use and the adjustments to Clause 37.

Chapter 4 – Clause 47
Amendments were also made to Chapter 4,  which dealt with land use schemes. Mr Ogunronbi proposed an insertion of a new sub clause in Clause 47 to address the involvement of traditional leaders in decision-making in the determination of municipal land use schemes. He noted that traditional leaders had a role to play in decision-making in terms of the Municipal Structure Act (MSA) and the TLFA. He observed that this was not only limited to participation,  but also was to ensure the legitimacy of decisions taken by the municipal authorities. The Department therefore proposed the recognition of traditional leaders in the development, preparation, adoption or amendment of municipal land use schemes.

Clauses 48, 49, 50 and 51
Mr Ogunronbi pointed out some textual improvements to the wording of clause 48 and 49, as well as clause 50 and 51. He observed that the way these provisions were originally presented in the Bill suggested that District Councils were going to be empowered to make land use schemes. However, in terms of the existing framework and the discussions during public hearings, this was not currently the case, neither was it desirable that in the immediate future  It was preferred that the primary authority to determine land use schemes should be the municipal or metro authorities. In order to make this clearer, clauses 48, 50 and 51 would now specifically refer to metros and local municipalities as the ones making that decision.

Clause 48 had some further textual amendments consequent upon the recognition of traditional leaders in Clause 47, so that a sub-scheme could be developed, in an area falling under a traditional council, to recognise the special character of that area. He pointed out that most legislation was designed to assist urban planning as opposed to rural settlements.

All references to spatial development perspectives or strategies and provincial growth and development frameworks were also deleted in clause 51(2) to give full effect to earlier amendments.

Clause 55
Mr Ogunronbi referred to the question of enforcement of land use schemes. A provision was now being inserted in clause 55 to allow for a departure from the strict operation of the Bill in a situation where individuals may wish to apply for something outside the scope of the land use scheme. It was suggested that where good grounds existed for a land regulator to depart from a land use scheme, then the Bill should allow it. Such departure would amount to an amendment of the land use scheme.

Clause 56
Clause 56 was also amended to set forth the criteria of when an amendment would take effect.

Clause 67
The Department wanted to ensure clarity on the mandate of the Minister as National Land Use Regulator in accordance with the provisions of clause 67 in Chapter 7 of the Bill. The Minister’s role was therefore being redefined in accordance with the relevant provisions of the Constitution. It was also recommended that the Minister work in consultation with the National Land Use Commission (NLUC).

Clause 69
When it came to the issue of the composition of the NLUC, the Department suggested the removal of criteria relating to qualifications and experience in land use or related matters, based on the submission that such requirements could exclude traditional leaders. Clause 69 of the Bill was thus to be removed and a new clause was introduced to deal with qualification to membership of the NLUC. All these clauses would also provide exceptions in terms of who could not qualify to be a member of the NLUC.

Amendments to clauses relating to powers of the Minister
Mr Ogunronbi pointed out that clause 73 was amended insofar as the exemption to municipalities in terms of clause 76 was concerned. It had been suggested that the Premier should also be accorded the same power to exempt a municipality from parts of or the entire Bill. This would enable quicker responses to natural disaster in terms of resettlement initiatives. It was indicated that there could be a need to grant exemption powers to the Premier to deal with situations such as the Grootboem case, so that settlements that were not in accordance with the law could be regularised by municipal councils. It would also apply to situations where people may have built informal settlements in the absence of plans or diagrams or infrastructure and supplies. This would enable redress of the apartheid legacy of criminalising such settlements. It would recognise that people in these situations did not always choose to be where they were. The Municipality would also then be able to devise a plan for their formalisation. It was also suggested that the question of environmental sustainability should be factored into these provisions as well. Other aspects of land use included amendments to implement inclusionary housing policies that would enable low-cost housing in any area, so that property values could no longer impede certain land use schemes.

The removal of clause 73(2) of the Bill had been prompted by concerns from UWCCLC about the constitutionality of the Minister’s ability to bypass the Provinces.

Clause 71
It had also been pointed out during the public hearings that the Bill was silent on its relationship with other laws, especially the ones that it would not be repealing. An insertion was therefore brought into clause 71 to give information and guidance on the Bill’s relationship with other legislation.

Discussion
The Chairperson noted that some of the issues that had been dealt with the previous week were still emerging. One of those issues related to clause 73(3), which concerned the Minister of Housing, as it was suggested that there was no need for a special dispensation or recognition of the Minister of Housing. In earlier discussions this part had been deleted from the Bill but now the Department had brought it back.

Mr Ogunronbi replied that the drafters had re-introduced the reference to the Minister of Housing after the Department of Housing (DOH) had emphasised that there were many functions, such as the implementation of an exclusionary housing policy, that would require the DOH norms and standards. It would therefore be much easier if the DOH could act in terms of this Bill. They would not be administering the Bill but acting in terms of its provisions. He argued that the Department of Housing wanted to derive its powers from this Bill to avoid the scenario whereby their operations would be determined by fragmented legislation. For these reasons, recognition of the Minister of Housing had been retained in Clause 73. However, he would be guided by the views of the Committee. He added that the recognition of the Minister in clause 73 raised an issue of whether this was impliedly repealing the Less Formal Township Establishment Act (LFTEA).

The Chairperson said that the second issue arose from Clause 5, relating to consultation. Although the Department had dealt with it inasmuch as intergovernmental frameworks were concerned, it was nonetheless silent on civil society. The Chairperson wondered if this was left to be implied from the reference made to the IRFA, as opposed to being expressly mentioned in the Bill.

Mr Ogunronbi responded that the norms and standards pertaining to the making of regulations adequately dealt with the matter but would add it to Clause 5 if the Committee so desired.

On the issue of the relationship between existing laws, the Chairperson wanted clarification which laws would be repealed by the Bill.

The Chairperson noted that another issue was the concern that the Act did not bind anybody, not even the State.

Mr Ogunronbi referred the Committee to the Interpretation Act but also asked that the State Law Advisers comment.

A State Law Adviser responded that it had been the practice in the past for legislation to expressly include a provision to the effect that it was binding on the State. However, there was always that implication, so that it really did not matter whether the clause was expressly stated or not.

The Chairperson wanted to know why such a clause should be omitted now, if it had been the practice over the years to include it.

Mr Ogunronbi responded that in reality that provision, although traditionally included, had not conferred any additional meaning. Notwithstanding that it may have been the “standard practice” the more modern style of drafting would demand that it was necessary to know why a particular word should be used in the Bill. The Bill would not suffer any defect from the omission of such words.

The Chairperson insisted that there was a purpose for the inclusion of those words and that they had not, in the past, merely been inserted as a matter of practice.

Adv S Holomisa (ANC) was of the view that if such a provision had been retained in the legislation since 1994, this must have been for good reason, as in the past the State had never been answerable to Parliament. He believed that unless a law specifically mentioned that the State was not bound, the implication of any legislation was always that the State is bound.

The Chairperson also made comments on the special dispensation issue, and observed that other State organs might also qualify for similar recognition, given that they could also use the same argument that had been used to justify the inclusion of the Department of Housing.

Adv S Holomisa (ANC) suggested that if a special dispensation was to be given to the Minister of Housing, then the provision should similarly apply to all other Ministers, subject to consultation with the responsible Ministry.

Mr Glen Thomas, Deputy Director General, DLA, responded that the issue of a special dispensation to the Minister of Housing would then not be included in the Bill in view of the fact that there could be many other Departments that would be affected by the Bill and it would not be practical to mention all of them.

Ms B Ntuli (ANC) asked a question on the issue of non-impediment in terms of Clause 4. She wanted to know whether that clause covered all areas, especially the rural areas and informal areas. If not, then the Committee would have done nothing for people settled in those communities.

Adv Holomisa referred the Committee to the use of the words ‘previous homelands’. He questioned why this had been adopted in place of the normal formulation of “TBVC States” for these areas.

Mr Thomas explained that the Constitution’s Schedule 6, in which the same definition was used, had guided the Department.

Adv Holomisa noted that the definition section had defined ‘land use scheme’. He noted that since later parts of the Bill referred to ‘sub-scheme’, it would be necessary for the definition of ‘land use scheme’ to include ‘sub-scheme’.

Mr Ogunronbi he took note of this comment. However he pointed out that there was sufficient description of a sub-scheme in the clause where it was mentioned. From a functional point of view, there was no difference in what a sub-scheme was and what a land use scheme would do. There was no hierarchy to say that a land use scheme was superior to a sub-scheme. The designation of an area as a sub-scheme was mainly to recognise its special character.

Adv Holomisa had noted that the Department took into account the participation of traditional leaders in the making of land use schemes. He still did not understand why the role of Land Administration Committees did not seem to take into account the provisions of the Communal Land Rights Act (ClaRA). He was of the view that the traditional councils in his area performed the same kind of functions as land administration committees. He wondered whether the intention of the Bill was to do away that, since municipal councils would now do all that had been done by the traditional councils. This was not clear to him at a practical level, and he feared that at some stage it would become necessary to amend the Bill because it did not live up to the realities on the ground. He therefore requested clarity on the relationship between traditional councils and municipal land use committees. He particularly wanted to know what difficulties the Department had in formulating something that would recognise the functions of traditional councils.

Mr Thomas accepted the recommendation by Adv Holomisa, ANC for greater inclusion of traditional leaders’ councils in the Bill. On the issue of the land administration committee and the land use committee, the Department had not seen any conflict in terms of CLaRA. He felt that the representation in land use committees could be done when speaking of the composition of the committee. If this was linked to the discussion of the traditional councils, the matter of representation could be addressed. He also accepted that the words ‘traditional leader’ should be replaced with ‘traditional council’.

Adv Dirk du Toit, Deputy Minister of Agriculture and Land Affairs, commented that the main difficulty with the Bill was the fact that it incorporated many national, provincial and municipal functions. There was constant interaction amongst all these functions at any given time in the legislation. There were so many other factors that would have an impact, such as Transport, Environment, and Water. This was what made this legislation difficult, and it was his hope that the Committee would come up with something that could work.

Mr D Dlali (ANC) requested clarification on some of the provisions of the Bill. In respect of the definitions on page 8 of the Bill, he believed that there was a need to amplify them because of references made to other laws. He furthermore expressed the view that the Bill’s provisions on the composition of land use committees had to be consistent with CLaRA and that this issue was not negotiable. 

There was some further debate on the relationship between land use and the role of traditional councils in terms of the Framework Act and ClaRA.

Deliberations on the Bill clause by clause and Adoption
Preamble
The Chairperson put the preamble to a vote by the Members, who all agreed to its insertion into the Bill.

Mr A Nel (DA) queried the inclusion of subsection (5) in the reference to Section 25 of the Constitution in the Preamble.

Deputy Minister Dirk du Toit explained that the reference to this subsection was in order, and provided clarity.

Adv Holomisa proposed that, in the light of what had been discussed about traditional councils, something to this effect should be incorporated into the preamble. He further suggested that wherever else the Bill spoke about organs of state, the traditional councils should also be included. 

Adv du Toit requested the State Law Adviser to read out the definition of “organs of state” in the Constitution.

The State Law Adviser referred the Committee to Section 239 of the Constitution,  where State Organ was defined as any department of state, or any other functionary or institution exercising a power or function in terms of the Constitution or a provisional Constitution, or exercising a public power or a public function in terms of any legislation…

The Chairperson was satisfied that traditional councils were included in terms of that definition.

Arrangement of Act
The Chairperson put the provisions on the arrangement of the Act to the Committee for consideration and adoption.

Adv Holomisa wanted to know where the Bill would be talking about traditional councils in land use committees in the arrangement of sections.

The Chairperson suggested that this matter should be held in abeyance until the Committee had reached those specific provisions.

The Committee approved the amendments to the structure of the Bill, including consequential amendments and re-ordering of provisions.

Part 1
When discussing the provisions of Part 1 of the Bill, an issue was raised regarding gender equality in the composition of municipal land use committees. The Chairperson reminded members that this issue would be dealt with when they got to the specific provisions.

Definitions clause
The Chairperson put forward the definition section for consideration and adoption. He highlighted the amendments to do with the IRFA, as well as cross-referencing which occurred as a result.

The State Law Adviser explained the criteria for determining whether an Act should be included in the definition section, to enable Mr Dlali to understand why certain laws were included whilst others were not.

Chapter 3
The Chairperson put the provisions of Chapter 3 to the Committee for consideration and adoption. He took note of the clauses that had been renumbered and deleted.

Mr Dlali stated that there should be a clause to include traditional leadership in the composition of Land Use Committees, and asked for a redrafting of the Bill to reflect this.

The State Law Adviser argued that the current provisions were adequate, since traditional leaders were envisaged in the language of the relevant clause. In any event the sub-clauses of the Bill contained all the exclusions to qualification for appointment to a Committee. Those exclusions did not list traditional leaders. Because they were not in the exclusions, they could therefore be part of a Committee.

Mr Dlali was not satisfied with this explanation and demanded that the drafters should draft the recommendation for inclusion of traditional leaders in the composition of the Committee.

Adv Holomisa provided the Committee with his impression of the current state of the interactions between local government and traditional institutions of leadership, to provide guidance to the way in which a clause could be drafted.

Mr Nel asked whether Parliament could legislate on how a municipality could appoint its committee.

Amendment of Clause 9(c) and approval of amendment
The Committee approved the adoption of an amendment to Clause 9 (c) to include nominees from each tribal council within that municipal area.

Mr Nel, DA asked what would happen if these nominees constituted a majority.

The Chairperson referred to the Municipal Structure Act, Section 81 (c).

Amendments to address race and gender, and participation of traditional leaders
The Committee deliberated further on these provisions and effected amendments to address members’ concerns about race and gender, in addition to the participation of traditional leaders in land use committees. These discussions were also relevant in deliberations on land regulation, especially in the determination of the role of traditional leadership in land administration committees.

Amendments to functions of land use regulators
The Committee deliberated on and adopted amendments on the functions of land use regulators.

Compensation issues
Ms Ntuli had expressed concerns about the need for alternative settlements or compensation in the exercise of regulatory powers.

The Committee eventually agreed, after some debate, that it was better to leave the issue of alternative settlement and compensation of evictees to judicial processes.

Amendments to clause 57
The Committee also deliberated on operational procedures for land use regulators. Amendments were approved to the manner by which meetings would be conducted in terms of clause 57.

Jurisdiction of Minister
Mr Nel raised a question on the jurisdiction of the Minister to hear appeals.

The DLA provided clarity on the nature of appeals that would come before the Minister and observed that in any event there would be no danger in view of the fact that the High Court had original jurisdiction.

The minute was completed using the official minute for the meeting given by the Committee Sectretary

Members discussed the National Land Use Commission (Chapter 7). Members agreed that the redrafted Chapter should be adopted without amendments.

The Chairperson read out the Motion of Desirability, which was agreed to by Members.

There were no further amendments; therefore the Chairperson submitted the Committee Report on the Bill for consideration and then adoption:

"The Portfolio Committee on Agriculture and Land Affairs, having considered the subject of the Land Use Management Bill [Bill 27-2008] (National Assembly – sec 76), referred to it, and classified by the Joint Tagging Mechanism (JTM) as a section 76 Bill, presents a redraft of the Bill [B27B-2008]."

The meeting was adjourned.