Commission on Restitution of Land Rights: Progress & strategies to finalise all claims by 2012.

Meeting report

Commission on Restitution of Land Rights (CRLR or the Commission): Progress Report
Mr Andrew Mphela, Chief Land Claims Commissioner, Commission on Restitution of Land Rights, stated that the strategic objectives of the CRLR included providing equitable redress to victims of racial land dispossession, providing access to rights in land, fostering national reconciliation and improving household welfare, as well as underpinning economic growth and contributing to poverty alleviation. The Commission’s priorities included research and settlement of all outstanding land claims, facilitating implementation of all land claims, developing an effective communication strategy between land claims and beneficiaries, building sound stakeholder relationships and developing an efficient and effective monitoring and evaluation system.

The forms of compensation that claimants could receive consisted of financial compensation, restoration of land, alternative land and any other developments. The Commission’s business process consisted of a pre-settlement and post-settlement plan. The pre-settlement plan consisted of six phases. These were lodgment and registration of claims, screening and categorisation, determination of qualification, negotiations, settlement and implementation of settlement. The eight phases in the post-settlement plan consisted of interim management, project feasibility, project planning, business modeling, resource mobilisation, stakeholder relations, capacity development and project implementation.

Mr Mphela noted that the Commission hoped to settle all outstanding land claims by 2014. It would hope to validate, gazette, verify and settle 4 296 claims by 2011. Verification of claims often posed a challenge when there were untraceable or passive claimants. There was also the challenge of outstanding research on claims. The Commission outsourced research, but found problems with the management and quality of reports. Claims that were validated by research were prioritised for negotiations. An assessment done showed that a large number of claims were not researched. The Commission proposed re-prioritising the focus of the human resources in its offices to focus on finalising the outstanding research. The Commission also wanted to move away from gazetting claims before they were investigated. Research regarding State land showed that valuation of land needed to include the public land presently falling under municipalities as part of the total State land, in order to standardise and regularise valuation methods.

Phases 4 and 5 of the pre-settlement plan were concerned with negotiations and settlement. The Commission faced huge challenges in finalising outstanding claims. These related to internal and external issues. Internal challenges included pre and post-settlement fragmentation, risk management, lack of financial management skills and lack of sufficient budget. External challenges involved claimants’ verification, issues of conflict that affected negotiations, issues with land owners on validity, issues with land prices, high costs of land, forestry claims, the Development Facilitation Act, conservation, high value crops, an insufficient pool of valuers and lack of coordination between the national, provincial and local spheres. (see attached document for more detail).

Phase 6 challenges in implementation were linked to challenges experienced in the negotiations and settlements phases as well as to challenges in the post-settlement business process. Planning for implementation was not always finalised in the pre-settlement phase. This led to delays when grant money was required for implementation planning.

The challenges faced in the Post-settlement plans included lack of integration and co-ordination of programme areas, the production value of land being reduced from its original valuation, ad hoc institutional arrangements at provincial level, land being given to unskilled people without training, lack of proper settlement planning, unrealistic expectations regarding restoration of land, inadequate land use plans and business plans, and an inadequate grant structure that did not address the sustainability of restitution and community conflicts before and after settlements (see attached document).

The Commission provided statistics on settled restitution claims and briefly discussed its expenditure as well as capital transfer expenditure. Two months into the new financial year, the Commission had spent 80% of its capital budget. The budget was depleted by the end of June. The Commission provided an analysis of the land values, which included an analysis of average land rates per province. The overall national average was difficult to determine in view of the different types of land usage. There were also outstanding rural claims. This was a complex matter and there were many dynamics and various role players that the Commission had to manage.

Mr Mphela noted that the Commission had embarked upon an audit with regard to outstanding claims and had projected to settle 1 695 claims in the next financial year. However, this may not be feasible, given budgetary constraints, capacity constraints, and the nature of outstanding claims. More details on this were contained in the attached document.

Discussion
Ms A Steyn (DA) addressed the issue of high land values, saying that the high land value for Kwazulu-Natal (KZN) and Mpumalanga, showed that areas with sugar cane had the highest value.

Mr Mphela responded that there were provincial averages for land value depending on the commodity produced. He said that this information could be forwarded to the Committee. There was no national average, as averages were region specific. Even in the same province there were differences in averages for land having the same commodity. For a range of reasons, a banana crop in Mpumalanga might not have the same value as a banana crop in KwaZulu Natal. He added that valuers were a scarce skill, and there were very few black valuers in the country.

The Chairperson was worried about the CRLR’s approach to land valuation. He stated that the Committee’s expectation was that the Department of Rural Development and Land Reform (DoRDLR) would have its own valuation standards, which would be a national norm or even law. If other valuers did not agree with the valuations set by the Department, they would be able to compare their work against the Department’s standards. Mr Mphela seemed to be presenting the valuers’ point of view instead of the Department’s point of view. The Committee was dealing with what the norm was for the Department’s valuations, compared to what other valuers would give.

Mr Mphela stated that the Department approached Absa and the Land Bank. There were already norms and standards that it had established regarding land valuation.

The Chairperson stated that he was becoming impatient with the Commissioner. The CRLR’s mission insisted on transformation. If the CRLR approached Absa to develop norms, this would not encourage transformation since Absa would not want transformation that would change the status quo. He wondered who would guide transformation in the Department if Absa was developing the norms.

Mr Mphela stated that the Department had to rely on some kind of authority when it came to land valuation. He added that the problem might have to do with market-led policies. He had set out the Department’s constraints in this regard, but wished to stress that it was following the Government’s policy.

The Chairperson asked if Mr Mphela was suggesting that the Government did not want transformation. He wondered why the CRLR thought the Government would, on the one hand, ask for transformation and then, on the other, just “flow with the tide”. He stated that he would leave the matter for the time being, as he now had a better understanding of what was happening within the Department.

Mr B Skosana (IFP) asked if valuation norms from Absa could be given to the Committee.

The Chairperson stated that he was sure the Members could get these, but did not feel that these would make a difference. The Committee wanted to get to the bottom of the problem. He wanted to know if the clash between the buyers and sellers of land was due to the disagreements on the price of land, unwillingness to part with the land, or if there was collusion between Departmental staff, the estate agents and the valuers. He wondered if it was the Commissioner’s duty to answer this question or if Members should use the information before them to resolve the matter themselves.

Hon Joe Phaahla, Deputy Minister of Rural Development and Land Reform, stated that he thought the Chairperson was on the right track. The problem here was fundamentally a constitutional one. The Constitution provided for the protection of individual land and property rights. If land restitution and land reform was premised on the protection of the individual, then it was determined by the market price. This meant that when determining the correct price of a piece of land, the State and its institutions could not veer away from the protection of individual rights. For this reason, it was impossible for the State or the Commission to arrive at a particular norm. Members were concerned at the constraints within that constitutional guarantee, as there seemed to be two market prices. There was a market price for the State and its institutions, and a market price for individuals. Land was sold at different prices, depending on whether the buyer was an individual or the CRLR. The Committee needed actual, factual analysis of the difference between an individual buying the land and the Commission buying the land. The Commission had to report back to the Committee on an analysis of this pricing discrepancy.

The Chairperson noted that the market allowed for the bulk buyer to buy at a cheaper rate than the individual. The Commission had to develop strategies as a bulk buyer of land, so it could buy land at lower prices. The Commission should be empowered. He agreed that the Commission and Department would have to come back to the Committee to present strategies that would resolve the matter.    

Ms Steyn asked if post-settlement plans were only started after pre-settlement plans were completed. She thought that the two processes should be run together, and asked for comment from the CRLR. She also asked for clarity on what internal challenges the CRLR was facing with regards to negotiations and settlements.

Mr Mphela answered that the two settlement plans used to be two fragmented processes. There was an issue of lack of capacity. The Commission did not have fully fledged units to address planning processes and to coordinate with other government departments to ensure integration of plans for implementing decisions of the Land Claims Court or the Commission. This was why the Commission could settle a claim but would not have internal capacity to start planning processes. Local authorities, when asked to assist, would respond to CRLR that this was an unfunded mandate.

The Chairperson asked if it was really the task of the Commission to perform the post-settlement function, and whether Members were expecting the Commission to do something that really was not mandated to it.

Mr Mphela stated that the Commission always understood that post-settlement functions were not part of its mandate. However, it could not just leave matters as they were because there was no one else responsible for the function. 

The Chairperson stated that it was clear that other departments such as the Department of Agriculture, Forestry and Fisheries should be involved in post-settlement matters. This matter had to be debated and settled once and for all. The Minister and Deputy Minister should come back to the Committee to tell Members how the post-settlement function would be taken over by other departments.

Mr M Swathe (DA) noted that when the CRLR discussed challenges with negotiations and settlements, they mentioned that there was collusion on prices. He asked how the Commission came to know about this and what it was doing to resolve the matter.

The Chairperson asked if the Commissioner wanted to answer this question in writing.

Mr Mphela answered that he would.  

Mr Swathe noted that there was some land that was not going to be processed due to the land not being surveyed. He asked if the CRLR was going to employ a surveyor so the land could be assessed for those people who were actually claiming.

Mr Mphela stated that the Commission required the land to be surveyed.

The Chairperson interrupted Mr Mphela’s explanation, saying that the Director-General of the Department had told him that land surveying fell within the jurisdiction of the Department. He wondered if the Commission was saying that unsurveyed land could not be transferred to the Department, as this would appear to contradict what the Director General had said.

Mr Mphela answered that he was not contradicting the Director General. However, there were challenges within the Department. Every time the Commission went with the Department to survey the land, they used private surveyors or contract surveyors. The Department needed to appoint internal capacity to cope with the large scale on which surveying must be done in the Department. He was sure that the Director General was saying that the Department recognised this problem and was starting to build capacity within the Department.

The Chairperson stated that the Committee would make a note to take up this matter with the Director General.

The Chairperson also noted that it took a long time once a claim was filed, before it was settled and for the land to be transferred. 

Mr Mphela stated that there were problems with State land and unsurveyed land. There were also discrepancies in the information received from different sources, which would need to be resolved before a claim could be settled. However, he conceded that in many instances claims should be settled and transferred faster. There were, however, some cases where claims were settled quickly if they were not beset by the types of problems outlined.

The Chairperson stated that the Government thought that the Kruger National Park was a national asset and international icon that could not be given back to the people. However, there were people who thought they had been deprived of the land. He asked if the Commission was in favour of giving this land back to the people. The vision of the Commission was to be the leader of restitution for victims of racial dispossession. If the Government made the decision to keep the Park as it was, then he asked who would stand on the side of the victims.

Mr Mphela stated that it had always been the Commission’s view that the land should be restored. It had already received a legal opinion on the matter, which stated that it was not possible for anybody to place a restriction on what was a Constitutional prerogative. The Commission was advising claimants that it was their right to defend their claims in court.

The Chairperson addressed the institutional capacity of the Commission. The CRLR did not explain why only 4% of land was transferred over the past fifteen years, instead of the 30% they were supposed to transfer by 2014. The Committee’s responsibility was to ensure that there was visible equitability. He asked if the CRLR had the capacity to do the transfers.

Mr Mphela stated that the 4% already transferred was from land reformation, which consisted of land restitution and land redistribution. Restitution dealt only with land that was claimed, while redistribution dealt with any land that was available. The Department was working on strategies to achieve a 30% land transfer by 2014.  

The Chairperson stated that the Committee was guided by the Commission’s documents. They were activists in favour of dispossessed victims. The Commission had to go out and ensure that there was equitability and reconciliation in the country. The Committee did not have more time to continue discussions with the Commission today but would set a date for when discussions would be held again, and both the Commission and the Director General of the Department should attend this meeting, so that answers were given and one could not claim that it was the responsibility of the other.

Adoption of Committee Minutes of 1 July
Members tabled and adopted the Minutes of the meeting on 1 July 2009, subject to an amendment as to the time of ending.

The meeting was adjourned.