Spatial Planning & Land Use Management Bill, Departmental budget: Briefings

NCOP Land Reform, Environment, Mineral Resources and Energy

28 May 2012
Chairperson: Ms A Qikani (Eastern Cape, ANC)
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Meeting Summary

The Department of Rural Development and Land Reform (DRDLR) briefed the Committee on the background and intention of the Spatial Planning and Land Use Management Bill. It was noted that the apartheid era had left a legacy of challenges around land use and planning, with distortions caused by the separate development policies and Group Areas Act. It was realised, in 1994, that the legislation clearly had to be repealed, but it was impossible to attend to everything at once without creating further difficulties, and so the Development Facilitation Act was drafted, as an intentionally temporary measure, to try to correct some of the problems. Provinces also had their own provincial ordinances around land use. However, in June 2010 the Constitutional Court had ruled certain provisions of this Act to be unconstitutional and invalid, but had suspended the order of validity, to give the DRDLR until 17 June 2012 to correct the situation. A decision had been taken to repeal that legislation, and to replace it with the Spatial Planning and Land Use Management Bill, but it was now clear that the Bill could not be passed before the deadline. An application had been made to the Constitutional Court to extend the deadline for a further two years. The DRDLR then briefly outlined the intention behind the Bill, and said that the Minister would have the power to prescribe regulations on various matters. The Bill addressed issues of intergovernmental relations, support and monitoring, and attempted to detail the roles of national, provincial and local government. Municipalities were to be responsible for land use management, but if the land development application was likely to affect the national interest, the Minister must make a determination.

Members asked questions as to which stakeholders had been consulted, and a member from KwaZulu Natal Provincial Legislature noted that there had not been sufficient consultation with the traditional leaders. Members were concerned about the ability of smaller municipalities to manage the processes, expressed concern that the Bill failed to address ownership rights in former homelands, asked if it was intended to cover areas held by the Ingonyama Trust, what the effect of the Bill would be on provincial and municipal legislation, and whether it catered for situations where a municipality needed to acquire more land. They asked for further clarity on the original intentions behind the Development Facilitation Act, what would happen in the case of conflict between the spheres of government and raised concerns that this Bill might interfere with the separation of powers. Several Members were concerned about the time limits and asked what the result would be if the Constitutional Court refused the application for an extension.  

In the second part of the meeting, Members asked questions about the budget of the DRDLR, which had been presented previously. They enquired about the framework of the Zero Hunger Project, and how the targets and figures had been reached. They also wanted to know about the overall targets for land reform, and how far this Department was from reaching that target. They noted the response that so far, 6.7 million hectares, or 26% of the formerly white-owned land, had been redistributed, against the target of 30%. Members enquired what budget was set aside for purchase from former land-owners and wanted to know more about the pending court applications and whether this had been provided for in the budget.  Members also enquired how much had been spent prior to recapitalisation exercises, and what support was offered to those whose farming efforts had previously failed.

Meeting report

Spatial Planning and Land Use Management Bill 2012: Department of Rural Development and Land Reform briefing
The Department of Rural Development and Land Reform presented the Spatial Planning and Land Use Management Bill of 2012 to the Committee.

Mr Mduduzi Shabane, Director General, Department of Rural Development and Land Reform, noted that there were a number of challenges around the Spatial Planning and Land Use Management Bill, 2012 (the Bill). He noted that there was not sufficient time left to process the Bill, in order to meet the Constitutional Court deadline of 17 June 2012, which would be explained in more detail.  

Dr Nozizwe Makgalemele, Deputy Director General, Department of Rural Development and Land Reform, outlined the background to this Bill. She noted that during the apartheid era policies and legislation such as the Group Areas Act had created a distorted system that resulted in a huge burden being placed on the current administration. This Bill was an attempt to remedy the situation by repealing and replacing certain sections of previous legislation

Mr Sunday Ogunronbi, Executive Manager: Spatial Planning and Information, Department of Rural Development and Land Reform, went on to note that these challenges had led to the need to formulate this Bill, in order to try to correct the complex and disorganised planning systems of the past. After 1994, various legislative measures were taken to try to remedy the situation. In 1995, the Development Facilitation Act (DFA) was passed, but in June 2010 the Constitutional Court had ruled certain provisions of this Act to be unconstitutional and invalid. However, it had suspended the order of invalidity until 17 June 2012, to allow the Department of Rural Development and Land Reform (DRDLR) to correct the situation. The DRDLR decided that, rather than trying to correct the DFA, it would instead create a new piece of legislation, and therefore drew the Spatial Planning and Land Use Management Bill, which sought to repeal and replace the DFA.

However, as outlined by Mr Shabane, there was now insufficient time remaining to pass this Bill prior to the deadline of 17 June 2012. The DRDLR had made an application to the Constitutional Court seeking an extension of the period of suspension of the order of invalidity, for a further period of two years.

Mr Ogunronbi described the Bill, its objectives, development principles, and norms and standards (see attached presentation for full details). He noted that the Minister had the power to prescribe regulations. The Bill gave guidelines on various matters, to facilitate implementation. It also covered areas such as Intergovernmental relations, support and monitoring. The Bill detailed the specific roles of national, provincial and local government.

In particular, Mr Ogunronbi emphasised that the municipalities were to be responsible for Land Use Management. All land development applications were to be determined by municipalities. However, when the land development application was likely to affect the national interest, such application must be referred to the Minister.

Discussion
The Chairperson requested that the Department forward to the Committee a list of all the stakeholders who were consulted during the consultation process.

Ms N Magadla (ANC, Kwazulu Natal) was concerned about the capacity of smaller municipalities to manage the process, and asked how the DRDLR intended to address this challenge, particularly in situations where one municipality might refuse to work with others.

Mr M Waters (DA, NA member) was concerned about the short time remaining before the order of invalidity would taken effect. He noted that it would clearly not be possible to conduct proper consultations before 17 June 2012. He also expressed his concern that the Bill failed to address ownership rights in the former homelands, where people were living in extreme poverty. This land constituted 30% of agricultural land in the country.

Mr G Mokgoro (ANC Northern Cape) asked whether the Bill contained anything about the provision of water in rural areas. He asked whether the Bill was intended to repeal all other existing pieces of legislation, including municipal ordinances, in different areas. He also enquired whether the Bill had dealt with the case of those municipalities who were surrounded by privately-owned land, pointing out that municipalities well may run out of land for further development.

Mr Mokgoro also wanted clarity on why the Development Facilitation Act was to be repealed entirely, an why it had been regarded only as interim legislation.

A Member asked how it was intended that smaller municipalities, who already could not implement their own Integrated Development and Planning programmes, because they lacked capacity, would deal with planning and land use management in future.  

A Member asked what would happen if the spatial development framework led to a conflict between national, provincial and local government, and whether, in this case, the Minister would regulate the land use.

Ms G Swartbooi (KwaZulu Natal Provincial Legislature) noted that in KwaZulu Natal most of the land fell under the Ingonyama Trust, and most of the available land was situated in rural areas. She asked how this Bill would affect that land. She also wondered if the Bill made any provision for the establishment of a Land Bank, and whether any audits were to be conducted to determine how much vacant land there was in the country.

Mr D Worth (DA Free State) raised a question on separation of powers. He was concerned that this Bill was essentially cutting across provincial and local government matters, and this applied particularly in relation to the portion that was sub-headed as “Defining National Interest”. He felt that the Bill amounted to interference in the specific sphere of local government. He asked about cooperation between affected departments.

Chief Madlala (KwaZulu Natal Provincial Legislature) also raised concerns about the time limitations. He noted that traditional leaders had not been consulted adequately on the Bill.

The Chairperson asked what would happen if the Constitutional Court dismissed the application for an extension of the suspension of the order of invalidity.

Mr Shabane responded to questions relating to communal land ownership. He assured Members that the Department was working with the traditional leaders to draft a policy that dealt with communal areas. However, he also confirmed that this Bill would apply to all these areas, including the areas under the control of the Ingonyama Trust areas.

He added that there were 17 integrated projects relating to infrastructure development that were currently taking place across the country, including in the communal land areas. These projects included building of dams and revitalisation of the irrigation schemes. He also assured Members that the Department would build sufficient capacity in order to implement the Bill. The problem at the moment was that national and provincial departments did not give the necessary support to the local government structures.

Mr Ogunronbi responded to questions and concerns about the deadline date of 17 June 2012. He said that even if the Constitutional Court were to refuse the application for an extension of this deadline, there were other options open to the Department. The Western Cape province was still operating under old ordinances of 1986, which meant that no significant problems were anticipated in that province, even if the DFA were to fall away. Gauteng would have to revert to the old laws that existed prior to 1995. KwaZulu Natal had passed its own legislation around land use in 2008, although this too had its challenges, and this law was still in place. Free State would also have to revert to using old ordinances in place prior to the DFA being passed, with some sections of the DFA having limited application. North West had also passed its own legislation in 2008. Mr Ogunronbi noted that there were problems with provinces such as Northwest, and Limpopo, which comprised former homelands. Mpumalanga had old ordinances that applied to the formerly white areas, and the same situation applied to the Eastern Cape. However, he conceded that none of this would be ideal, and the DRDLR would be faced with difficulties should the application for an extension be dismissed.

Mr Ogunronbi responded also to questions around monitoring and support. The DRDLR had offered support to municipalities in coming up with spatial development frameworks, and had also rolled out guidelines for developing these frameworks. That process was still continuing. Spatial Planning Information Systems had been started up in Free State and Northern Cape, and these would create a technical platform  for proper monitoring systems. The system would be rolled out nationally, and should help to alleviate the issue of lack of capacity.

Mr Ogunronbi then addressed the issue of land tenure in rural areas. He assured Members that the DRDLR would be involving the traditional leaders, as mentioned already, and that no land would be left without planning in place.

Mr Ogunronbi responded to questions around the effect of the Bill and the DFA. He said that national government could not repeal provincial ordinances, so where these were already in place and should be repealed, this was up to the provincial legislatures. He explained that the DFA was considered to be interim legislation. In 1994 government had been aware of the challenges that it faced as a result of the legacy of segregation. It had been impossible then to repeal all existing laws in one fell swoop. The DFA was enacted as an interim solution, pending proper studies being completed.

Mr Ogunronbi noted that there might be instances in which state owned land was surrounded by privately-owned land but said that there was nothing to prevent privately-owned land being purchased for public use.

Mr Ogunronbi noted the questions around possible conflict and separation of powers, but emphasised that different sectors of government should work together, as stated in section 41 of the Constitution. The power to determine land use remained ultimately with the Minister of Rural Development and Land Reform. However, other ministries such as Human Settlements, Agriculture and others had interests in the matter. He noted that in relation to provincial differences, these were recognised, but there was a national framework to which all the provinces should comply. Chapter 3 of the Bill stated that provinces should define matters of specific provincial interest, and take remedial measures where a municipality failed to perform, and also enact legislation that deal with their provincial matters.

The Chairperson requested that all provinces should be briefed by next week on the Bill.

Department of Rural Development and Land Reform Budget issues
In this part of the meeting, the Chairperson gave the opportunity to Members to ask questions of clarity on the budget of the DRDLR.

Mr D Worth (DA, Free State) enquired about the framework for the Zero Hunger Project. He enquired why only 2 700 household gardens were anticipated, and enquired how the figure of R5 000 per household had been reached.
Mr Worth enquired what the target was for land reform and land still to be purchased, how far the Department was from reaching that target.

Mr Shabane responded that in respect of both household gardens and farms to be purchased, the DRDLR was the lead or coordinating department, and focused mainly on issues such as creating vibrant, equitable, sustainable rural communities and food security for all. The Departments of Health, Social Development, Human Settlements and Basic Education were examples of other departments that were involved. The targets set related to a total target that should be reached with all available and combined resources.

Mr Worth referred to court applications by former land owners whose land had been purchased by the Department, but was not yet paid for. He noted that there was no provision for this in the budget.

Mr Shabane responded that the DRDLR had requested an allocation for this of R2 billion from the National Treasury, and between 2010 and 2011 a lot of payments were made to the former land owners. There was a team looking at the current court applications, of which there were 309. The DRDLR would negotiate with some of the 309 claimants and attempt to settle out of court. He noted that the court cases resulted not from the inability or unwillingness of the Department to pay, but some of the issues raised in these cases were questions raised by land owners on the validity of claims over their land. Only the court could resolve those issues.

Mr Worth wanted to know how much money had been spent prior to the recapitalisation exercise, on farms, and what had now been done to assist farmers who had previously failed.

Mr Vusi Mahlangu, Executive Manager: Strategic Land Reform Interventions, DRDLR, noted that 1 807 farms were identified in the 2009/10 financial year for recapitalisation, up to 2014. 640 farms had been  assisted at the end of the previous financial year, and an additional 416 farms were under consideration. Last year R1.3 billion was budgeted for this, but because there was a need for partners to assist the farmers, the entire budget could not be spent. In 1994, 82 million hectares of agricultural land was white-owned, and government set a target to redistribute 30% of that land. Since the process had started, 6.7 million hectares, or 26% of the 82 million hectares, had been redistributed.

The meeting was adjourned.

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