Commission on Restitution of Land Rights: Petition Matters; Adoption of Sectional Titles Amendment Bill [B14-2010] and Deeds Registries Amendment Bill [B13-2010]

Meeting report

Ms A Steyn (DA) complained that she had received the presentation documents concerning the petition matters only a few minutes before the meeting.  She requested that the briefing was postponed to allow Members of the Committee time to study the information provided.

Nkosi Z Mandela (ANC) and Ms P Ngwenya-Mabila (ANC) disagreed that the meeting should be postlponed as it would be a wasteful exercise.

The Chairperson gave the Commision a verbal warning to ensure that presentation documentation was timeously provided to the Committee in future.

Adoption of the Deeds Registries Amendment Bill
Nkosi Mandela proposed that the Committee approved the Bill and the proposal was seconded by Mr S Mmusi (ANC).  The Committee approved the Bill, without amendment.

Adoption of the Sectional Titles Amendment Bill
Ms Ngwenya-Mabila proposed that the Committee approved the Bill and the porposal was seconded by Nkosi Mandela.  The Committee approved the Bill, without amendment.

Briefing by the Commision on Restitution of Land Rights: Petition Matters
Mr Sibusiso Gamede, Acting Chief Land Claims Commissioner, presented an overview of the petition matters related to the restitution of land rights. The briefing included the background to the petition matters, the challenges raised in the petition and the way forward (see attached document).

A group of members of the public had lodged a petition in support of complaints concerning the delay in the settlement of land restitution claims claims by the Western Cape Regional Land Claims Commission. The complainants included the Independant Ratepayers Association of South Africa (IRASA), CONFLASA and ordinary citizens from Stellenbosch, Constantia, Claremont, Newlands, Kirstenbosch, Klawer, Goodwood, Kensington, Windermere and Hout Bay. The Commision evaluated the petition and concluded that no claims had been lodged by IRASA and CONFLASA. Only five reference numbers were provided by signatories to the petition. Certain claims were found to be non-compliant. The District Six Action Committee did not represent any claimants but had formed a task team on which the Commission was represented. The Raapkraal claim was found to be non-compliant.

The challenges raised in the petition were summarised.  There were a number of unresolved claim applications and many claimants had since given up any hope of being restored to their land. The White Paper on Land Reform stated that the restitution programme would be finalised within five years of the enactment of the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994). Delays in the finalisation process had been caused by a lack of documentation to support claims; community or family disputes; the unavailability of land (particularly in the Western Cape); the validity of claims and challenges to land claims by the current landowners. Prescribed forms were completed when the claims were lodged but were submitted to various Government institutions. The Commission was aware of allegations that claim forms had been lost or misplaced. The claims that could be proved were processed.  The Act did not allow the processing of claims received later than 31 December 1998.

Various developments had occurred that affected the restitution of land. Section 11 (7)(a) of the Restitution Act prohibited the disposal, lease, subdivision, rezoning or development of land that was subject to restitution claims. The owners in possession of land that they wished to develop could apply to the Commisioner for permission to be granted only after the claim was published in the Government Gazette. The Commisioner might agree to the development if the land was not required as the settlement option, i.e. where claimants opted for financial compensation rather than restitution of the land.

Certain claimants had claimed that they had been lied to and threatened by officials. The Department of Rural Development and Land Reform (DRDLR) strived to ensure that every employee complied with the Batho Pele principles and did not condone the actions of any employee who did not act in accordance with these principles.  

Allegations of corruption between officials and developers had been made. The DRDLR had a zero tolerance approach on corruption and encouraged the reporting of all incidents to the corruption hotline, the South African Police Services (SAPS) or to other relevant authorities. The Department had experienced deliberate settlement delays. The Restitution Act stipulated the process that had to be followed in the settlement of claims. However, there were challenges that hampered the speedy processing of claims. Certain officials had abused their administrative responsibility by deliberately spreading misinformation to confuse and frustrate claimants. Persons who were aware of such incidents were encouraged to inform the senior management of the Department or to report the matter to the Office of the Public Protector.

Complaints were received that applications were administered on a selective and subjective basis. Specific details were required to investigate such allegations as there were policies, procedures and systems in place. The Restitution Act made provision for the procedures followed by the Commission. A number of claimants had claimed that the process was too exhaustive and bureaucratic. Specific details were required to investigate this allegation. Certain claimants had been forced to obtain legal representation and had exhausted their financial resources. The Commission assisted claimants with legal advice and had a legal unit with experienced and qualified officials. The Section 29 (4) of the Act allowed the Commissioner to cover the legal costs incurred by valid claimants, but claimants also had the right to consult legal experts on their own account.

Feedback on the settlement options available to the Lambert’s Bay community claim was provided. The Lambert’s Bay claim was settled when the municipality granted 2,4 hectares of land to the community. The claimants were currently engaged in a process of requesting a change in the option to apply for financial compensation. Mr Frans had approached the court on behalf of the Saron Mission Station but without the support of the claimants. His claim was considered to be invalid and he needed to provide further evidence to validate the claim.

A standard settlement offer policy was developed to determine settlement amounts when claimants opted for financial compensation. This policy was reviewed on an annual basis to ensure alignment with the housing subsidy and the Consumer Price Index (CPI).

Ms Ester Sozawe’s claim for financial compensation would be settled in March 2011. Ms Ally Buffkins’ claim in Hout Bay would be settled upon the release of land. Ms Annie Schoeman’s claim had been settled, pending claimant option change. Ms Veronica Nxukuma’s and Ms Hazel Hoaho’s claims had been settled. Development was implemented pending finalisation of a business plan. Claims from Mr Nigel Daniels and Mr Peter Jafta were rejected because of non-compliance.

The way forward for the Commission included following up on all the outstanding claims listed in the petition. Claims lodged and found to be valid would be processed in accordance with normal procedure. The Commission requested those persons who had lodged claims that were subsequently lost or misplaced to come forward and to provide proof of lodgement. The Commission required detailed information on the alleged incidents of corruption, intimidation and unprofessional behaviour by officials in order to undertake the necessary investigations and disciplinary action.

Discussion
Mr B Zulu (ANC) noted that District Six Action Committee did not represent any claimants. He asked what would happen if more people lodged claims at a later stage, claiming that they were forcefully removed from District Six and if the Department would be able to accommodate such claims. He asked if there was a register that could confirm that claims had been lodged in the event that claimants lost their proof of lodgement. The report indicated that the Lambert’s Bay municipality had granted 2,4 hectares of land to claimants and that the claimants were currently engaged in the process of requesting financial compensation instead. He asked if the Department had already bought the land from the municipality and how the Department would deal with the claim for financial compensation. He was concerned over the allegations made by claimants against officials. It would appear that the Department was protecting corrupt officials rather than investigating the allegations.

Nkosi Mandela noted that Ms Steyn and a group of people had excused themselves from attending the meeting. He asked if it would be useful to continue with the meeting if the complainants were not represented. The Committee was hoping to gain some insight from the complainants on their complaints but this could not be done if they were not present.

The Chairperson replied that the complainants were afforded the opportunity to raise their complaints when the petition was lodged. The complainants had not been invited to the meeting and she had been surprised when they left with Ms Steyn. The complainants had attended the meeting as observers. Unless the complainants were invited by the Committee, the meeting was not the correct platform to engage with them. She assumed that the persons concerned had left because they did not consider it necessary to remain present during the meeting.

Mr Gamede explained that the Department had received various claims from other organisations and institutions similar to the District Six Action Committee. The Department accepted the claim, researched the claim and followed a verification process. The same procedure was followed in all provinces. With regard to the lost claim forms, the Commission acknowledged that initially there was no central point where claims had to be lodged. Claims were lodged at Magistrate Courts or at the offices of other Government Departments. The Commission conceded that it was possible that information could have been lost during the process of gathering all the claims at a central point. It was difficult for the Commission to respond to claims lodged 10 or 30 years ago with no proof of lodgement. The Commission attempted to assist all claimants to the best of its ability. The 2,4 hectares of land in Lamberts Bay was not purchased but the Department had engaged with the municipality to release the land to the claimants. Verification was still in progress to determine how many claimants wanted the land for housing and how many wanted financial compensation. Claims were settled on the basis of either financial compensation or land restoration. There were a number of ways that complainants could use to report allegations against officials. It was difficult for the Department to deal with generalised allegations. Complaints against officials could be lodged at the Department’s anti-corruption hotline, SAPS or any other suitable place. The Department needed detailed information to begin investigations into the allegations and disciplinary action cannot be taken against officials unless wrongdoing was proved.

Ms Beverly Jansen, Regional Land Claims Commission, Western Cape confirmed that the District Six claim had been settled. The Department was waiting on the long term development plans to be finalised. The District Six Action Committee consisted of various stakeholders, including the Commission. The Trust represented all claimants on the task team but the person who submitted the petition refused to be represented by the Trust. The claimants from District Six and Saron had submitted petitions and also took the matter to court. The Commissioner was very unhappy with the manner in which the complainants were dealing with their complaints because the Department was working strictly in accordance with the Act. The Commissioner refused to engage with Mr Frans from Saron because he took his complaint to court. 

The Chairperson asked Ms Jansen to provide the Committee with a list of the developments on the land that had been claimed under Section 11 of the Act. She asked how many claims were in progress and if the Department had a better strategy of fast-tracking those claims.

Ms Ngwenya-Mabila asked for more clarity on the estimated R6 billion cost of developing District Six. She asked if the claimants were aware of the assistance provided by the Department. There would have been no need for claimants to obtain their own legal assistance if they had known about the assistance available from the Department. She stressed her concerns regarding the choice that claimants had, i.e. either land restitution or financial compensation. Claimants chose land restitution and then opted for financial compensation. This presented a challenge because it resulted in delays in finalising the restitution process. She asked what assistance the Department required from the Committee to address the issue and improve the effectiveness of the Department.

Ms Jansen replied that the R6 billion was only an estimate of the cost of developing District Six. The estimate was arrived at after a comprehensive study was done.  The funding would be provided by various Government entities. Certain complainants from District Six had mounted a class action on behalf of a very small group of people who preferred to go to court. The claimants wanted the Department to pay for their legal fees but the Commissioner had used her discretion and turned down the request because the claimants refused to take advice from the Department’s legal team. The claimants were not offered legal assistance and paid their own legal fees. The Act was silent on giving the Department the authority to inform people about what options they should take, which was the reason why the choice of option was left up to the claimant.

Mr Gamede said that those claimants who had opted for land restoration did not see the direct benefits of land ownership compared to financial compensation. He requested the assistance of the Committee with informing people of the options available and the importance of staying with the original option selected to ensure the speedy finalisation of the process. The budget of the Department was affected as well.  Most of the claimants who had complaints concerning legal assistance were those persons who decided to challenge the processes or the decision of the Commission or the landowners in court. The Commission attempted to inform people of their rights under the Restitution Act and the Section 29 form. The Department had assisted many claimants to date.  He undertook to provide the Committee with a list of claims where Section 11 notices had been issued by the following week.

Mr Zulu asked what the grounds were for Mr Frans’ claim in Saron.

Ms Jansen replied that the land concerned was owned by the Saron Mission Station. The claimants were occupying the land but there was land situated outside the Mission Station that Mr Frans wanted to claim for individual families.  Mr Frans wanted the land owned by the church to be given to the families. There was no proof that the claimants concerned had ever owned the land.  Mr Frans had taken the Saron municipality to court as well. The Department had difficulty in explaining to Mr Frans what the Act said regarding land that could be restored.  Mr Frans was informed that his claim was not a restitution case. The Department could not take land that belonged to other people and it was best that the matter was settled in court.

The meeting was adjourned.