Limpopo Communal Property Associations concerns: progress report; with Minister and Deputy Ministers

Meeting report

After the Chairperson had opened the meeting, Mr K Robertson (DA) said he had submitted a letter to the Committee regarding a claim on a property adjacent to the airport by a family that had been occupying the land, and the feedback from the Committee to the Minister had been that they required a period of 14 days with regard to the query. He asked for an answer from the Chairperson on this issue.

The Chairperson said that she would check her report and revert in due course.

Mr P Mnguni (ANC) said that the issue of restitution must be placed on the meeting’s agenda, despite the fact the matter was pending in court, because of the urgency of the matter.

Mr M Filtane (UDM) agreed that the matter of restitution must be addressed by the Committee. However, the issues of Limpopo and Mpumalanga that were on the agenda for the meeting, must be discussed first.

The Chairperson asked for the minutes of 3 May to be considered. When it was discovered that these minutes had multiple errors, the Members agreed to defer their consideration to the next meeting.

The Chairperson said the purpose of the meeting was to get a briefing from the Department of Rural Development and Land Reform (DRDLR) on how far they had dealt with the issues that arose in the public hearings that it conducted in relation to the Communal Property Associations Amendment Bill (CPA Amendment Bill). She directed that the report from Limpopo should be considered first. The public hearings had not only been intended to hear the views and grievances from the public, but also to assist the Committee with solutions to the problems that had arisen.

CPA Amendment Bill: Public hearings

Ms Maite Nkoana-Mashabane, Minister of the DRDLR, instructed Ms Sureshinee Govender, Principal Communications Officer (PCO): Parliament, Mr Fumani Mkhabela, Acting Chief Director: Mining, Limpopo, Provincial Shared Services Centre (PSSC), and Mr Tele Maphoto. Chief Director: Land Restitution Support, Limpopo, to give the presentation on the public hearings in Limpopo.

Ms Govender said that some of the issues raised in the public hearings were at times beyond the mandate of the Communal Property Associations (CPAs), but the Department was actively addressing all the other issues that had been raised in the report.

Mr Mkhabela said that his presentation was in response to the report arising from the public hearings on the CPA Amendment Bill conducted by the Portfolio Committee (PC) on 10 and 11 August 2017 in Limpopo, specifically in the districts of Mopani and Waterberg. 

Seabi CPA (Restitution)

The first CPA that had been dealt with in the report was the Seabi CPA (Restitution). The land had been transferred to this CPA in two phases in 2009 and 2014. This was the restitution claim. The Department had paid an amount of R20 million for four parcels of land. He acknowledged that the CPA was not functioning properly as a result of conflicts in its structure. The Department had provided some assistance, but the CPA still could not function properly because it did not have access to the land.

In the hearing that was held, the following concerns were raised;

• The Seabi family, which stays on the property, prohibited committee members from accessing the property, and it was for this reason that the community at large, as well as the committee members could not access the land.
• There were also complaints that at one point, members of the CPA as well as some beneficiaries were assaulted. Some of them were hospitalised as a result. Some of the members of the Seabi family were also arrested.
• The matter was taken before the court and the perpetrators from the family were found guilty of these offences.
• There was a court interdict to prohibit the household from staying on the property, as well as prohibiting other committee members from operating on that piece of land. The family still refused to vacate the land.

In light of the above, the Department had intervened in several ways:

• It had advised the CPA to involve the South African Police Service (SAPS) at the Vila Nora police station to enforce the court interdict. However, the Department had information that the CPA committee could not get the necessary assistance from the SAPS.
• The Limpopo Provincial Shared Service Centre (LPSSC) had held a joint meeting with all stakeholders -- the CPA committee, the Vila Nora SAPS and the National Prosecuting Authority (NPA) -- on 18 September 2017.
• At the meeting, it was decided that there was a need to involve the Sheriff of the Court in this issue. However, in order for the Sheriff to execute his functions appropriately, a certain amount of money was required. The CPA managed to raise R3 000 for the Sheriff to serve the family with the documents to vacate the property. This was done in December 2017, but the family still did not vacate the premises. Therefore the Sheriff provided a quotation amounting to R300 000 to enable him to execute an eviction order.
• The CPA lacked the necessary funds, but the Department was currently making a submission to the Land Rights Management Facility (LRMF) to request assistance with the eviction. The memo was expected to be finalised by 15 May 2018.

Lebelo CPA (Restitution)

The second CPA was the Lebelo CPA (Restitution). The land was transferred in 2007, in which the Department paid an amount of R7 million for eight parcels of land, as restitution to the CPA. This CPA was regularized in 2016, and was functioning properly.

However, two concerns had been raised by the CPA. These were Interference by the traditional authorities in its affairs -- for example, demarcating residential sites on CPA land – and it had also enquired on the progress of their application for funding from the Department.     

The interventions that were taken to address these concerns were;

• The LPSSC, together with the District For a, had undertaken to train CPAs and traditional authorities on their roles and responsibilities pertaining to CPA matters in order to avoid any overlaps or disagreements in future. This was the resolution from the meeting held on 12 July 2017 between the Department and the District Fora.
• With regard to the funding application, funding of R1.2 million was approved on 19 December 2017 through the assistance of the LPSSC.
• From 23 May to 27 June, the Department would be running training sessions for both the Seabi and Lebelo CPAs on the responsibilities of CPAs and traditional authorities on matters regarding CPAs.

Seema CPA (Restitution)

The third CPA was the Seema CPA (Restitution), to whom land could not be transferred because of the consolidation process that was ongoing. Conservancy was to be established on the land.

The areas of concern for this CPA were that the traditional authorities were interfering with the matters of the CPA, and they also had not received title deeds for the parcels of land that were to be transferred to them. They wanted to cement their security of tenure through obtaining title deeds.

The interventions/ plans to address these concerns were;

• As was the case with the Lebelo CPA, the LPSSC had taken an initiative with the District Fora to train CPAs and traditional authorities on their roles and responsibilities relating to CPA matters. This was the resolution from the meeting held on 12 July 2017 between the Department and the District Fora.
• The Department had attempted to conduct training for the Lebelo and Seema CPAs, but due to non-cooperation and budgetary constraints, it could not succeed and therefore a new programme had been drafted to run from 23 May to 27 June 2018.
• The restituted farms, coupled with the gazetted farms, were consolidated into Farm Gillimburg through a process of consolidating farms by the Property Management Unit, since they wanted to create a conservancy on pieces of the land. This process was going ahead. The Department, together with the Property Management Unit, was assessing whether the consolidation could be reversed.

Koka Matlou CPA (Restitution)

The fourth CPA was the Koka Matlou CPA (Restitution). The land had been transferred to them in 2004, as restitution. The Department had paid R4 million for seven parcels of land. This CPA was functioning well. However, two issues had been raised. These were the alleged encroachment beyond the boundaries between the CPA land and neighbouring properties, and accessing funding through the Recapitalisation and Development Programme (RADP)

The interventions were:

• On the issue of boundaries, the Department had consulted the Surveyor General’s office. They had visited the properties to ascertain the boundaries for the CPA, which were indicated by beacons. This was on 6 October 2015.
• The Members of the CPA had expressed dissatisfaction with the beacons and did not accept the boundaries drawn. The Department had decided to send the Surveyor General’s office again to verify the land and re-determine the boundaries. Maps would be provided.
• On the issue of funding, the application was approved on 22 February 2018 for R2 165 737. It was being implemented.

Bakgatla Ba Mocha CPA (Restitution)

The fifth CPA was the Bakgatla Ba Mocha CPA (Restitution). Pursuant to their claim for restitution, land was transferred in six phases between 2008 and 2014, and the Department had paid R97 million for seven parcels of land. This CPA was dysfunctional because of internal conflicts. The concern raised was the infighting within the CPA among its members.

The interventions included:

• The term of office of the sitting committee expired and it did not want elections for a new committee to be held, so the members took the committee to court.
• The Department had intervened, and the State Attorney’s office was handling the court proceedings. The State Attorneys advised the PSSC to regularize the CPA, whilst the court processes were ongoing. 
• The LPSSC had engaged with the CPA and had met one of the CPA factions on 23 August 2017.
• The Department had embarked on the process of regularising the CPA, but this could not happen because the various factions of the CPA had failed to cooperate with the mediation process.
• The Department had referred the matter to the LRMF for mediation on 6 November 2017, and this was under way.

Modimolle Community Development Trust (Restitution)

The sixth CPA was the Modimolle Community Development Trust (Restitution). Land was transferred in 2004, where the Department had paid R57 million for nine parcels of land. This CPA was also dysfunctional because of internal conflicts. However, this was not a CPA because when the land was received, a trust was registered that would run the property.

The issues raised were that there were differences between the trustees and the beneficiaries, coupled with the non-functionality of the entity in terms of production.

The interventions were:

• The Department had been engaging the beneficiaries and had held a meeting with the objective of doing away with the trust and establishing a CPA.
• The process of establishing the CPA was scheduled to commence in June 2018.

Modjadji Land Claim (Restitution)

A representative of the land claimants raised concerns about delays in the settlement of their land claim.

The intervention involved a response being given, saying that the normal processes of verifying the claim had been done, and it had been found that the claim was invalid in terms of s2 of the Restitution Act. However, s 6(2) (b) of the Act allowed the Minister to exercise his/her discretion to allocate land to the claimants. The Department was looking into this option and the documents that were being prepared would be served in July 2018.

Maluleka Alina

This was an enquiry by a member of the community who stays on the communal land. She wanted to know whether the community could sell the land and form a CPA. She was told that the land could not be sold because they did not individually have title deeds for the pieces of land they were occupying.

Mhlaba-Willem Land Claim

One of the claimants alleged that they needed to be compensated financially, as opposed to having the land restored to them. This was part of the new-order claims that had been referred back to Parliament for consultations to be conducted in view of finalising the Act. It would therefore be considered once the process had been dealt with in Parliament.

Mamahlola CPA (Restitution)

The properties were restored in the year 2000, and an amount of R41 431 000 was paid by the state for four land parcels. This CPA was functional.

The allegation that was made was that there was an illegal sale of land being conducted by some members of the CPA. The Department had conducted an investigation into the allegation and found that no land had been sold.

The CPA had been regularised and additional training would be provided for the beneficiaries regarding the matters involving the CPA.

Letlakaneng CPA (Restitution)

This matter was raised by a non-governmental organisation (NGO) that wanted to find out about the legitimacy of the CPA district forum that had been established to assist in dealing with complaints, because the Department was handling numerous complaints, so another body was needed to lessen this burden.

The LPSSC’s response was that the CPA district forum had been initiated by the Chief Land Claims Commissioner (CLCC) as part of an attempt to deal with the plethora of complaints about CPAs, and it had been working well since it was established through assisting with conflict resolution.

Discussion

Mr Filtane asked the Department to clarify why the Seabi family had refused to vacate the land, even after the investment of R20 Million by the Department and the various court hearings that had taken place. Why had the Sheriff of the court needed to be funded in order to perform his duties, yet funding was supposed to come from the Department of Justice? What was the R1.2 million that had been allocated for training for both the Seabi and Lebelo CPAs to be used for, because he felt that the amount was excessive for training? He drew from his personal experience of having trained community members in the past, and therefore had an idea of the amounts that were required.

He asked what was being done to solve the issue of interference by traditional authorities in the Lebelo and Seema CPAs, apart from training the traditional leaders on their roles. With regard to the Seema CPA, he wanted to know when the consultation process would be finalised would be a date or timeline to work with. What was meant by saying a CPA was “functioning well” -- did this mean that the people were making money and were profitable? What criteria were used when stating that a CPA was functioning well?

He questioned why the Department was making use of attorneys when it came to mediation instead of social facilitators, as attorneys would normally have very high hourly rates.  He also wanted to know what criteria had been used to come to the conclusion that the Mamahlola CPA was functional.

Mr Robertson said that infighting seemed to be a big problem in most of these CPAs -- for example, people disregarding the beacons for Matlou, fighting over conservancy in Seema and the sitting committee refusing to step down in Bakgatla Ba Mocha. He asked what the Department officials that were responsible for mediating were doing to solve such issues, since the matters were going to court instead of being mediated. Was it possible that the people in the Department could not handle such conflicts? He commented that it was these issues that created a situation where rural development and reform was not performing properly, as there was always something happening in the courts. If people in the Department were upskilled and facilitated, these problems would be avoided.

He also asked that since the Seema CPA was going to be converted into a conservancy, would any profits be generated from the conservancy. Would it involve tourism, or something where the community could start generating some form of income, as people wanted land because they needed some form of income.

He suggested the CPA should be looking at sub-divisions of the property so that conflict did not occur. Everybody would know what section of land was theirs. People would understand what their property was and where their responsibilities were.

Ms N Magadla (ANC) asked about the inconsistencies in the amounts of money that were paid for the parcels of land in each CPA. In some CPAs, more money was paid for fewer parcels of land than in others. She wanted clarity on the criteria used to determine the amount spent on the parcels of land. She also asked how far the process of recapitalisation and development had gone, considering the problems with the Department of Agriculture last year.

Mr M Nchabeleng (ANC) said he felt it would be more effective if the Committee were to be briefed on what was happening in the CPAs in each province, where they would each be required to account for all the projects they had initiated in the community, for the purpose of ensuring transparency and openness. This was because such issues and problems came to the attention of the Members only when they engaged with the public. The CPAs rarely gave updates and feedback. Regular updates and feedback would save time for the various Portfolio Committees and allow them to focus on other urgent matters.

Mr N Matiase (EFF) asked the Department whether it was aware of the land claim that had been brought by the Bakgaga-ba-Maupa community in Limpopo, especially on the issues of commissioning and restitution. The claim was still outstanding and the community had not yet organised itself into a CPA. He wanted to know what the Department was doing about this matter.

Department’s response

Ms Govender said that although the hearings were for CPAs, it was important for communities to raise their issues.

On the issue of the funding for Sheriffs, she responded that none of the actions they carried out were free, and therefore in order for the Sheriff to execute the court eviction order, there would be costs to be incurred by the Department.

With regard to the R1.2 million for the Lebelo and Seabi CPAs, she responded that this amount was not just for training, but was also money they were asking for, for some development.

On the issue of why they were training people only at that point and had not done it before, she responded that as they settled claims, purchased land and established CPAs, all relevant stakeholders were consulted, facilitated and brought together to understand their roles. However, for all of these CPAs the was a need for ongoing training and facilitation of understanding their responsibilities, because one found that over time -- depending on what was happening on a particular project -- people tended to find themselves in different roles.

There were different levels at which a CPA would be considered to be “functional.” One of these levels, where the majority of the problems arose, was the level of governance. One could say that a CPA was functioning because it was meant to be a structure that managed issues around governance, so the focus was on the governance aspect and not on the developmental aspects, which centred on profitability.

She acknowledged that there were conflicts within the CPAs, and the Department was actively going to the CPAs to make sure they dealt with the issues that arose, including in the regularisation process. She insisted that conflicts would continue to arise, however, because in many of the early projects and in terms of restitution, there were large groups involved, so conflicts were inevitable. Therefore the issue was to provide assistance early enough, because when a conflict was allowed to persist for a long time, that was when it became unmanageable.

She said the Acting Director General (DG) would respond to the question of why lawyers were being used instead of mediators, but mentioned that the Department did use Land Rights Management Facilities where they had mediators working in law firms. On why they could not resolve some matters instead of the Department taking people to court, she said that the nature of some of the conflicts was not about the capacity of the officials, but was about bringing in people with certain specialised skills which they may not always have within the Department. As they were drafting the CPA Amendment Bill, they had indicated the challenges around capacity, and and they were also trying to capacitate their teams around the country in CPA management in readiness for that Bill becoming law so as to stop their reliance on courts. This was why they brought in external persons with expertise to assist in these issues of capacity management.

Ms Govender emphasised that the criteria used for the different amounts spent on the parcels of land depended on what parcel of land they were purchasing, as restitution was in terms of the land being restored. Also, the parcels did not always have the same number of hectares -- one could have land equalling 10 parcels, but the hectares only being 100. Similarly, you could have land having four parcels and the hectares being much more than 100. Therefore, the value paid was determined by what was on the land, what activities were being carried out on the land, and what facilities and infrastructure were there. This was what created the difference in the values paid.

On the question of how far the process of recapitalisation and development was, Ms Govender acknowledged that there had been some problems last year between the DRDLR and the Department of Agriculture, following the decision to transfer land. At a Committee meeting between the two Departments, it had been decided that they should proceed with the process of recapitalisation, which was currently under way. They were liaising with the Department of Agriculture to support small-scale farmers in matters such as financing activities.

Regarding the Committee being briefed on the activities of all CPAs, she said that the Department would be looking at all the farms that had been acquired, which had also been suggested by President Ramaphosa in his State of the Nation Address, in order to provide comprehensive reports on what was happening in each CPA. They were currently in the first phase of looking at farms acquired through proactive acquisition, which was expected to be completed by June 2018. After this was done, they would be able to determine which of these farms had challenges and which did not. The same would be done for all the farms acquired around the country. This was important, because it would enable them to give a clearer picture regarding what type of support was required in order to move people into production.

Mr Tele Maphoto. Chief Director: Land Restitution Support, Limpopo, explained why the CPA had not had access to the farm in the Seabi issue. The family had lost the claim, but felt that they were entitled to the land, to the exclusion of all other beneficiaries in the community. This was the reason why the family was refusing to vacate the land as they tried to evict them, as per the court order.

The Seema claim on the consolidation of the land had been settled. When the Minister approved S42 (d) to award the land – which was state land -- to the Seema family, the process to create a conservancy around the area had already began. As a result, when the Department wanted to transfer the land, it did not the have same description as originally described. This had created issues when it came to transferring the land, because what was being transferred was not according to the specifications they had for the land. They therefore intended to undo the consolidation of the land and transfer it to the family which was entitled to it.

He supported the sentiments of Ms Govender, that the words “functioning well” referred to the governance aspect.

There were no profits generated in Seema from the conservancy. This was in fact done by the Limpopo Provincial Tourism and Development organisation, so the Department was not privy to such information.

Mr Fumani Mkhabela, Acting Chief Director: Mining, Limpopo, said the DRDLR would conduct training after consulting with each CPA. He emphasised that the training was for both the CPAs as well as traditional leaders. They were considering approaching the House of Traditional Leaders to assist in bringing the traditional leaders together, so that instead of dealing with one CPA, they trained across the provinces in one sitting, to make their work easier and faster.

A Member of the Committee expressed concerns that there were a lot of contradictions, denials and apologies in the correspondence between the DRDLR and the Committee. He asked the Department to clarify and provide a concrete undertaking in writing as to which of the 146 farms would be acquired. This was in an effort to hold them accountable.

Mr Filtane asked what the Department’s standard procedure for dealing with land claims was. He insisted that the Department had not clarified what the R1.2 million that had been approved for the Lebelo CPA was to be used for. They had stated that it was not just for training purposes, but had not said what else it would be used for.

Mr Mnguni accused the DGs of “passing the buck,” because they were never there when things happened on the ground and in public hearings, and sent officials instead. Also, the way they responded to the questions was too general and non-committal about the model used in the provinces. The provincial structures for CPAs in Limpopo needed to be standardised across the country.

The Chairperson said the Department should explain the provincial structure applied by the various CPAs and how issues were addressed. She should also indicate how they intended to engage the traditional leaders and explain their roles. She asked whether any agreements had been signed with beneficiaries in the various communities. 

Mr Filtane insisted that he needed a response on the use of attorneys instead of mediators.

Deputy Minister Candith Mashego-Dlamini explained that the reason CPAs had conflicts was that previously there had been difficulty in consolidating claims. This had created problems because when a CPA was formed, it would be led by people who were not previously on the disputed land, and therefore the land owners became agitated because their interests were being managed by people who did not own it. This situation had created serious conflict, so the Department had undertaken to verify the identity of the people who were on the land whenever it was dealing with the land claims and registering the parcels of land.

The second problem was when the CPA wanted to be a business entity at the same time, which meant they became the referee and the player at the same time. This frustrated the beneficiaries in most of the cases. The Department therefore endeavoured to make sure that land owners were recognised as such, and that the business entities accounted to the land owners. It was hoped this would resolve some of the issues.

On the issue of the claims taking too long, she said that the process of dealing with claims was not automatic because at times, the occupiers of the land were doing certain things that made it difficult for the Department to purchase the land, such as having a bond over the property. There could also be a disagreement with the owners of the land regarding the price of the land that the Department wanted to buy. This meant that there would be claims that were still outstanding in all the provinces, but the Department was dealing with them.

Minister Nkoana- Mashabane expressed concern that land owners were increasingly involving the banks, which meant that when the Department attempted to buy the land, they often had to deal with banks or developers.

She asked the Members to focus their attention on the “original sin”, when black people were dispossessed of their ancestral land during the apartheid era. She referred to some of the atrocities that black people had been subjected to under apartheid, like being prevented from going to schools. She made it clear that repossessing land did not mean forcefully taking land from white people and handing it to black people, but repossessing it from people who owned large parcels of land, but did not live in South Africa.

Mr Matiase complained about the casual manner in which land disputes in South Africa had been handled by previous Ministers, and he hoped that Ms Nkoana-Mashabane would shun this approach when dealing with matters as important as land claims and disputes, as well as other things that black people had been forced to endure.

Ms Govender clarified that the R1.2 million represented the development funds that had been approved for the Department, and was not the budget for the training.

In response to Mr Mnguni, she said she would provide the names in writing of who was part of the various CPA fora in every province.

She admitted the Department had identified certain challenges within the Land Rights Management Facility itself, and had also been examining the quality of service from them. They were liaising with the Department of Justice to provide the services that were normally provided by the LMRF, whose contract with the Department was about to end.

Regarding the issue of lawyers being used instead of mediators, she said that alternative dispute resolution involved various stages on a continuum, and sometimes lawyers would be required despite the fact that they tended to be expensive and drag out the process. She insisted that mediation was to be used as the preferred route and only when it failed did the parties have a choice to take the matter to court.  Therefore the LRMF provided for both mediation and litigation. The Department had also rolled out a CPA forum in each district, where CPAs could share experiences, learn from each other, and receive role clarification..

Mr Maphoto said that in Seema, the name of the farms had changed when conservancies were created, but before they could be transferred to the CPA and consolidation had occurred. Therefore the Department needed to go to the people who had consolidated the area  -- the Property Management Unit -- to decide how to deal with the land and restore it to its rightful owners. He added that there were several matters pending in court relating to land.

Mr Mkhabela said that the reason they wanted to approach the House of Traditional Leaders was to deal with all the issues pertaining to CPAs jointly. However, in areas where there were issues involving the chiefs and CPAs, these would be dealt with individually by the Department. There was a need for the Department to clarify the standard procedure they applied for settling land disputes, because they normally applied the rule of law through agencies like the SAPS.

The Chairperson stressed that the Department was supposed to provide a full report of the operations of all its CPAs. Secondly, they must provide information on the Bakgaga-ba-Maupa CPA. She made it clear that when the Department sent officials to public hearings, these officials must submit a report on what was said there in order for all parties to remain abreast of what was going on in the communities.

Restitution issues

The Chairperson requested an update regarding restitution.

Dr Tshililo Manenzhe, Content Advisor: DRDLR, said that he had been informed by the Committee Secretary that they had advertised for the public to submit their comments to the Committee regarding the re-enactment of the legislation on restitution. The period given was 30 days. The Sspeaker had been informed about the processes of the Committee, and the fact that it would be engaging in public hearings in June. Members of the Committee were also requested to make submissions to the Committee Secretary to inform her about particular areas they feel would be important for the Committee to hold public hearings about.

Mr Mnguni said the timing for the public hearings ought to be changed in terms of the programming of Parliament, which directed that all enactments of legislation for 2018 by the National Assembly were required to be completed by the end of July. The venues for the public hearings also needed to be finalised and made known because at that point, the Members were not aware of where the public hearings would be conducted,

The Chairperson expressed concern about reports to be submitted to the Committee being changed on the day of the meeting. She requested that in the event that there were any changes to be made to reports, they should be done prior to the meeting in order to give the Members sufficient time to go over them and prepare to engage appropriately with the Department. In future, if changes to the reports were made on the day of the meeting, the reports in their entirety would not be considered at the meeting.

The Members decided that the Mpumalanga report should be considered at the next meeting, because they were currently not aware of the extent of the changes that had been made to the report. The consideration of the report was thus deferred to the next meeting.

Mr Nchabeleng felt that the Department was not well equipped to deal with the multiplicity of issues relating to giving land back to those who were dispossessed during the apartheid era.

Mr Filtane also mentioned that the Department had not responded to some of the concerns that he had raised with them last year.

The meeting was adjourned.