Restitution of Land Rights Amendments Bill: Content Advisor briefing & Motion of desirability

Rural Development and Land Reform

22 August 2018

Chairperson: Ms P Ngwenya-Mabila (ANC)

Meeting Summary

The Committee received a briefing on the highlights of the public participation processes the Committee embarked on recently in relation to the Restitution of Land Rights Amendments Bill.

The Content Advisor informed the Committee there was both support and objections to the reopening of lodgements. The latter group felt the reopening was causing uncertainty in the agricultural industry. The focus should be redirected to post-settlement support because land reform was playing a key role in the revitalisation of rural economy. The timing of the legislation and the process was brought into question because of public consultation by the Constitutional review Committee (CRC) which was reviewing Section 25 of the Constitution and Section 25 (7) which called for abandoning the 1913 cut-off date. There were concerns that the reopening would overburden an already burdened restitution with over R50 billion commitments, 19000 unfinalised claims, and 7000 unsettled claims. It was felt more funds needed to be allocated for the restitution.

Most Khoisan communities felt the Bill did not provide for a redress of the pre-1913 land dispossessions. Restitution for the indigenous communities dispossessed before 1913 was not catered for under restitution. They felt that government has betrayed them because the promise for policy provision has not been met.

The Content Advisor noted that capacity constraints resulted in the poor implementation of the Act. Research was not accurate because there was over-reliance on consultants whose reports, sometimes, could not be used in the Land Claims Court due to poor quality. Poor verification has resulted in restored farms (under CPAs) being hijacked by unverified members and persons with no rights to restitution on those farms. Poor database maintenance has caused communities to be sceptical about the capacity of the Commission to keep the Land Restitution Register up-to-date as well as making it available.

It was further indicated the hearings showed the Committee that improving the quality of the outcome of restitution would take more than legislative amendments. It required a comprehensive review which the Bill does not attempt to do. It required improvement in the delivery of restitution, which is, enhancing institutional capacity of the Commission to deliver restitution and deal with the challenges articulated by the stakeholders. It was important to enhance the parliamentary oversight on the implementation of the Restitution of Land Rights Act and the Commission on Restitution of Land Rights.

Members pointed out the report from the Committee content advisor was not an accurate reflection of the public hearings. There was an overwhelming support from the hearings they attended. The points that people had raised enthusiastically were missing. They further advised the Committee to look at the constitutionality of claims that come after old claims have been finalised. They said such matter needed to be legislated for if it was left continuing like that, it would take forever to finalise land claims and five to six land claims would be made on the same piece of land. Lastly, they proposed that the five-year limitation for re-opening of lodgement should be left as it is and should remain open-ended because most people, especially in rural areas, were not educated and getting information in time.

Meeting report

Dr Tshililo Manenzhe, Committee Content Advisor, took the Committee through the highlights of the public participation processes that the Committee engaged in. The re-opening of lodgement was widely supported by those who missed an opportunity to lodge claims before 1998; it also provided clarity on processing land claims lodged in 2014.

He reported that members of the public and stakeholders raised questions or issues that required the Committee’s attention. The concerns were around:

Five years limitations vs open-ended lodgement
Legislative/policy response to a possible ‘flood’ of claims on properties already restored to other CPAs/Trust and individuals
The Bill does not resolve some of the question raised in the LAMOSA matter at the Constitution Court i.e. ‘ring-fencing’ the old order claims
Drawing on the HLP recommendations

He informed the Committee there were also concerns and objections to the re-opening of the lodgements. It was felt the re-opening was causing uncertainty in the agricultural industry. The focus should be redirected to post-settlement support and that land reform was playing a key role in the revitalisation of the rural economy. The timing of the legislation and the process was brought to question because of public consultation by the Constitutional review Committee (CRC) which was reviewing Section 25 of the Constitution and Section 25 (7) which called for abandoning the 1913 cut-off date. It was further indicated the Bill did not take the HLP recommendations into consideration. Some felt that HLP proposals could result in positive changes to the outcomes of restitution, generally.

With regard to the 1913 cut-off date, most Khoisan communities felt the Bill did not provide for a redress of the pre-1913 land dispossessions. Restitution for the indigenous communities dispossessed before 1913 was not catered for under restitution. They felt that government has betrayed them because the promise for policy provision has not been met. There were exceptions to the 1913 cut-off date.

Dr Manenzhe indicated the CRC process of reviewing Section 25 of the Constitution might address this question and the Committee would have to amend the Restitution of Land Rights Act again. There were proposals for putting this Bill on hold until the review of Section 25 was completed.

He also pointed out that capacity constraints have resulted in the poor implementation of the Act. Research was not accurate because there was over-reliance on consultants whose reports, sometimes, could not be used in the Land Claims Court due to poor quality. Poor verification has resulted in restored farms (under CPAs) being hijacked by unverified members and persons with no rights to restitution on those farms. Poor database maintenance has caused communities to be sceptical about the capacity of the Commission to keep the Land Restitution Register up-to-date as well as making it available. Some claimants resorted to courts in order to compel the Commission to make information available to them. The lack of capacity to resolve conflicts has resulted in the merging and bundling of unrelated land claims and this created problems for CPAs and led them to withhold title deeds.

He noted there were concerns that the re-opening would over-burden an already burdened restitution with

over R50 billion commitments, 19000 unfinalised claims, and 7000 unsettled claims. It was felt more funds needed to be allocated for the restitution. The CRC process to review Section 25 of the Constitution was demystifying notions of the primacy of market-value in the determination of the compensation to be paid when the state acquires land in the public interest.

There were conflicting claims on land restored already. Traditional Councils have criticised CPAs for taking over ownership of land and management responsibilities for they believe those responsibilities belong to them, traditionally. Some Traditional Councils might lodge claims on land already awarded to CPAs as a way to assert their authority. This has resulted in on-going tensions and conflicts within communities.

The following proposals were made:

The Bill must consider restoration of the statutory independence of the Commission from Department of Rural Development and Land Reform
1913 cut-off date is entrenched in the Constitution.The Minister should grant preferential status in redistribution to people with historical claims to land which does not meet or predate restitution criteria
Amend the definition of ‘community’ to bring it in line with the one clarified in the Kranspoort Judgement
Improve research capacity by creating an independent research panel within the Commission
Focus on individual rights as opposed to amalgamated group claims. This should include a mechanism in bill that would enable existing settlements to be sub-divided so that rights could be awarded to specific beneficiaries
Set up a review panel to assess backlogged claims and refer to redistribution where appropriate and to review disputed settlements

Dr Manenzhe indicated the hearings showed them that improving the quality of the outcome of restitution would take more than legislative amendments. It required a comprehensive review which the Bill does not attempt to do. It required improvement in the delivery of restitution i.e. enhancing institutional capacity of the Commission to deliver restitution and deal with the challenges articulated by the stakeholders. It was important to enhance the parliamentary oversight on the implementation of the Restitution of Land Rights Act and the Commission on Restitution of Land Rights. The differences between restitution (Section 25 (7)) and redistribution (Section 25(5)0 should be clarified to ensure redistribution functions.

Discussion

Mr P Mnguni (ANC) commented it was not clear who has got the last say on the Bill besides Parliament. He indicated the last say should come from the legal section. There was a need to be consistent because the Committee might be juggling between research and legalities. If by 4 September 2018 the Bill is not done with when Parliament rises, this work would not go to the House. Alternatively, Parliament would have to go the Concourt to request for another extension. He also suggested the Committee should consider the motion of desirability. He then pointed out the report from the Committee content advisor was not an accurate reflection of the public hearings. The points raised were scanty though there was an overwhelming support for the bill from the 10 of the 18 hearings he attended. As a result, some of the members have to carry the burden of bringing those points forward. The points that people raised enthusiastically were missing. He urged the team to be balanced even though it participated in high level discussions.

Mr K Robertson (DA) wanted to understand the reasons for the 1998 cut-off date, and asked when the Committee would receive the High Level Panel report. He further wanted to establish how the amendment of Section 25 of the Constitution was going to affect the land claims process or how land expropriation without amending Section 25 was going to pan out and what the consequences would be either way.

The Chairperson reminded Members to focus on the amendments of the Bill and things they want clarity on, but not to look at the history of it.

Mr M Filtane (UDM) suggested the Committee should decide on a weekend to be set aside to work on the Bill because more work still needed to be done. He further advised the Committee to look at the constitutionality of claims that come after old claims have been finalised. Such a matter needed to be legislated for if it was left continuing like that, it would take forever to finalise land claims and five to six land claims would be made on the same piece of land. He also highlighted that uncertainty in the agricultural industry caused by the re-opening of cases was a technical thing and a personal problem of some few commercial farmers who were intent on derailing progress. No one should come and tell the Committee the re-opening of land cases would affect people. People were affected long before the Bill was developed. He indicated it was important to go back to the 1913 cut-off date because land was taken long before 1913. The Act should make provisions for land claims way beyond 1913. He went on to say SA was not short of budget to carry out the work upon hearing that the re-opening would over-burden the already burdened restitution. Parliament should be pressurised to release the High Level Panel Report for consideration so that it does not lose its value.

The Chairperson explained that Parliament has set up an ad hoc committee to look at the High Level Panel report which focuses on many sectors, not only on land matters. There was a process in place to have the recommendations of the report considered. The report would be made available to the Committee.

Ms N Magadla (ANC) proposed that the five-year limitation for re-opening of lodgement should be left as it is and should remain open-ended because most people were not educated and getting information in time.

Motion of Desirability

The Chairperson asked the Committee Secretary to read the motion of desirability to amend the legislation.

Mr Filtane supported the motion.

Mr E Nchabeleng (ANC) seconded the motion.

Ms C Matsimbi (ANC) voiced no objections.

The motion of desirability was adopted.

The Chairperson, due to time constraints, said the Bill would be considered clause by clause in the next meeting.

Ingonyama Trust Board (ITB) Request for Minutes

The Chairperson informed Members the Ingonyama Trust Board (ITB) lawyers were requesting the minutes of the meetings. She said the minutes could not be sent because they were not yet adopted by the Committee.

Mr Filtane advised the Committee to act with caution when dealing with ITB seeing that it has been taken to court. The Committee needed to find out what the lawyers were going to do with the minutes. The Committee has to make sure the position of the Chairperson was covered and ensure the minutes were the accurate reflection of what was discussed.

Mr Nchabeleng said the minutes were a public property once they were adopted and there was nothing sinister if ITB wanted to see them.

Adoption of Minutes

18 April 2018 Minutes

The Chairperson took the Members through the document, page by page.

Ms Magadla moved for the adoption of the minutes.

Mr Nchabeleng seconded the motion.