1913 Native Land Act Centenary Workshop with parliamentary committees, MPLs & other stakeholders: day 2

Ad Hoc Committee on the 1913 Native Land Act

08 June 2013
Chairperson: Mr P Sizani (ANC) & Ms T Sunduza (ANC)
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Meeting Summary

The South African Local Government Association responded to some comments from the previous day.  It was concerned over the state of programmes for the poor.  While it represented municipalities, it was also facilitating training of farmers.  Municipalities provided project management and supply chain management training.  Interventions from national departments were needed, but the Association felt that the coordinated effort that was needed was not yet evident.  The Department of Public Works reported that it controlled most of the land in municipal areas together with parastatals, while the Department of Rural Development and Land Reform controlled land in the rural areas.  Ownership of land was still a problem, but an audit of state-owned land should be completed by the end of 2014.  Much land had already been made available for both land reform and housing development.

Professor Ben Cousins, representing the Institute for Poverty, Land and Agrarian Studies, told the meeting that there were still many poor areas in the country.  The amount of land being used for crops was being reduced.  There had traditionally been support for large-scale commercial farmers and there was now a perception that government was trying to destroy the agricultural sector.  Small farmers made little contribution to the economy, growing crops mainly for their own use.  Land reform should combat poverty.  The Comprehensive Rural Development Programme, as a collection of individual projects, was unlikely to make fundamental changes.  Land under customary authority was divided into small units for the use of a family household and communal land, mainly for grazing.  He argued that experience with freehold ownership of land often led to the marginalisation of ownership, with a minority of landowners taking control over the majority of land.  He was concerned that chiefs might abuse the land given to them. The Communal Land Rights Act (ClaRA) (No. 11 of 2004) had been ruled unconstitutional, but its provisions seemed to be returning, judged on the presentation made by the Department of Rural Development and Land Reform the previous day.

The African Farmers Association of South Africa thanked the government of President Zuma for recognising the rights of the Khoisan people.  Black farmers had been marginalised in the past.  There was place in the sector for small-scale farmers, and even they could produce high quality crops.  Farmers should be part of the purchasing process.  It was important for new farmers to be assisted with recapitalisation.

Members of Agri-SA were prepared to assist with the correction of past injustices in the farming sector.  However, a farm must be run as a business founded on capital, technology and expertise.  There was a place for the small-scale farmer, but only if his operations fell within a value change.  The global trend was for the small farmers to fall by the wayside unless heavily subsidised.  Their Vice-President presented a model used in African countries where there was a mix of corporate farms, large farmers and small farmers, who were assisted by the large farmers.  Supplies were bought and produce sold at common prices with a pool of equipment for common use.  The uncertainty over the land restitution process was stalling the redistribution process.  Investment in farms was suffering as farmers faced an uncertain future.

The presentations drew extensive comments.  There was an opinion that freehold title was beneficial, and farms could be subdivided.  Marketing of produce remained a problem for small farmers.  Members raised concerns over the eviction of farm dwellers if none of the family was still working on the farm.  There was concern over dumping of produce.  The Congress of Traditional Leaders of South Africa was of the opinion that the property clause had been forced into the Constitution.  There could be no claims on developed land.  Land dispossession dated back to well before 1913, with the earliest battle over territory recorded in 1510.  Concern was expressed over the marketing of produce.  Small farmers did not have access to sophisticated packaging, and a lot of the money generated at markets did not go back into the community.  There were areas where there was Chinese interest in acquiring land.  Agricultural land was being used for other purposes.  There was an opinion that the land should only be owned by those who lived on it.  A register of land was needed.  All farmers and farm dwellers needed access to resources such as water.

The National House of Traditional Leaders spoke on behalf of all traditional leaders.  Rural development was needed to correct the imbalances created by apartheid.  The contribution of traditional leaders was essential to the success of rural development.  Services were still not reaching the deep rural areas, and education was needed for the people to take part in political processes.  The withdrawal of the Communal Land Rights Act (ClaRA) (No. 11 of 2004) was a drawback to the rural community, as these people believed in communal ownership of land.

The Legal Resources Centre told the meeting that although the role of traditional leaders was enshrined in the Constitution, the concept of customary law should first be defined.  Not all people wanted chiefs to speak on their behalf.  The Communal Land Rights Act (ClaRA) (No. 11 of 2004) had been ruled unconstitutional, but some of its provisions were re-emerging.  Traditional councils would hold and distribute land, but would also settle disputes.  Many people felt that they should have more of a say in land matters, and that tribes should be able to determine their own boundaries.  The implementation of customary law was creating a fourth, unelected, level of government.

The meeting heard stories from three petitioners supported by the Legal Resources Centre.  These stories involved the misuse of mineral rights by officials who were not from the area concerned while the original inhabitants had no claim. One tribe had been forcibly removed under apartheid laws and placed under the authority of a different chief, but had managed to secure its own territory after a court process.  Women were not able to argue their cases in front of tribal authorities.

Meeting report

Mr P Sizani (ANC), Chairperson, Portfolio Committee on Rural Development and Land Reform, welcomed those present. The South African Local Government Association (SALGA) had not finished their presentation and he called on them to pick up from where they had left off.  In interests of time, questions would not be taken but the leaders present would be welcome to make comments.

Responses by SALGA
Cllr Orginia Mafefe, SALGA, said that SALGA represented municipalities.  It was its responsibility to assist municipalities and to protect their interests.  Matters could be taken up with the relevant authorities.  On capacity building, SALGA was aware of some challenges and constraints being experienced by member municipalities.  SALGA was concerned over the implementation of programmes for the poor.  Farmers were being assisted to improve their skills, even small-scale farmers.  Seventeen farmers in Limpopo had recently received certificates after completing a training programme.  These farmers expressed their concern about the lack of access to markets.  Councillors were being trained to increase their capacity. 

Ms Mafefe said that SALGA also provided project management and training in this aspect.  Supply chain management also took a central role.  The other challenge in poverty alleviation was the lack of coordination with other departments.  The Reconstruction and Development Programme (RDP) was being used for service delivery in communities.  SALGA  worked with the Department of Rural Development and Land Reform (DRDLR) on a programme to assess the level of implementation of the Spatial Development Framework in a pilot programme in Limpopo.  The exercise would be replicated in the other eight provinces. 

Ms Mafefe said that some challenges could be addressed by municipalities, while others would require interventions from national departments.  There were still outstanding land claims.  Municipalities could not access state-owned lanes despite processes being in place.  There was a strained relationship between authorities, which saw development happening on a parallel basis.  There were also mining houses not cooperating with municipalities.  SALGA was providing interventions to get these parties to work together,

Ms Mafefe acknowledged the challenges.  It was SALGA's view that enough information was available.  All stakeholders at the different levels of government should ensure that development happened at a municipal level.  Municipalities submitted quarterly reports on their level of implementation and their constraints.  These reports were a basis for support, but municipalities were still reporting that support was happening at a snail's pace.  Not every area was covered, but some recommendations had been made in the report.

Ms C Mabuza (ANC) said that not all state land belonged to national departments, and some land was not suitable for agriculture.

Mr Mziwonke Dlabantu, Director-General (DG), Department of Public Works (DPW), said that most land in rural areas fell under DRDLR.  Most, but not all, land in urban areas was under the control of DPW.  Parastatals also owned tracts of land.  Land was released for agrarian reform and for the development of human settlements.  The criteria for this were strict.  Where land was released to municipalities, there was not always monitoring to see that the land was used for the purpose intended.  The private sector was often aggressive in its demand for land for development.  In the past five years, about 21 000 hectares had been released for land reform, and 1 400 hectares for housing developments.  The biggest constraint was the fact that not all the land ownership was determined.  He was hoping that the audit would be completed by the end of 2014.  The process would start in July 2013, and he hoped that the Department would be in a position to assess ownership by March 2014.  There were about 2 000 land packages where the ownership was being verified.

Land use and ownership
Professor Ben Cousins, National Research Foundation Chair, Institute for Poverty, Land and Agrarian Studies (PLAAS), University of the Western Cape (UWC) said that many areas of the country were still very poor.  The general perception of farming was of the large-scale commercial farms.  A lot of the land available in these communal lands was used for grazing.  The amount of land used for cropping was decreasing due to factors such as poor fencing allowing animals to destroy crops, amongst others.  There was a perception that government was destroying the farming sector.

Prof Cousins said that sales of farm produce in 2006 amounted to only about 3.4% of household income, with the majority of income coming from grants.  Even allowing for livestock sales would only take the total to 7%.  This was a legacy of apartheid.  There were some large herd owners who were doing well.  He asked if more could be successful, or if the use of land was constrained due to the dense crowding in these areas.

Prof Cousins quoted reliable statistics that about 2 million households grew crops for their own consumption, but only about 10% of these sold any of their produce.  Decades of policies had supported large-scale farming.  This had made these farmers the competitive farmers of today.  While the large farms accounted for about 70% of agricultural land, there were only about 37 000 farmers.  There were a large number of small farmers in the former homelands.  Land reform should correct a situation of extreme poverty.  This might blow up in government's faces in time, as illustrated in Zimbabwe.

Prof Cousins stated that the Comprehensive Rural Development Programme (CRDP) was a collection of individual projects, but such projects would not make fundamental changes.  Development was more about people responding to conditions than projects.  CRDP would not change conditions. 

Prof Cousins moved on to ownership of the 13% of land left to blacks after the Native Land Act of 1913.  He had been told that the land belonged to the people.  Families had strong rights to their plots while there were shared rights regarding grazing and water.  It was a complex system informed by cultural values, but was dynamic and did change from time to time.  In some cases single mothers were being allocated land despite cultural condemnation.  The DA had promoted freehold titles, which would see the disappearance of communal grazing and the emergence of small individual farms.  There was a White Paper. 

Prof Cousins said that freehold title as applied in Kenya had led to a minority dominating land ownership.  People would be expelled from the land and would end up in the squatter camps.  Banks would be extremely unlikely to lend money to owners of small plots.  Generally it was felt in Africa that communal tenure was not an obstacle to productivity but needed support.  Communal farms in Zimbabwe were highly productive.

Prof Cousins said that people who had owned land in the 17th and 18th centuries had only owned land through government agents.  Many people were placed under tribal rulers by the apartheid government against their will.  Land redistribution was needed to unpack the problems.  Group based ownership systems had lacked a legal basis and were often abused by chiefs.    Legislation was needed to protect these group rights.  The current legislation at present was flimsy, but did protect owners against deprivation of rights.

Prof Cousins said that the Communal Land Rights Act (ClaRA) (No. 11 of 2004) was no longer in place.  Traditional councils were set up as authorities of land.  Community Property Associations (CPA) could have their ownership taken away, and the land could then be placed under tribal authorities.  There had been opposition from 28 organisations, but government had gone ahead with this legislation.  Most administration took place at a local level between neighbours, and in councils of the elderly led by the local induna.  The transfer of title would exacerbate these powerful boundary disputes between tribes.  A big problem was that groups placed under tribal authorities by apartheid laws might find themselves completely dispossessed.  Citizens should have choices.  The balance of power had been shifted from individuals and families to larger groups.  Birth rights should be enshrined.  Many women with land did not have husbands, and might lose their land.

Prof Cousins said that the Act had been challenged in court.  In 2010, the Constitutional Court had ruled in favour of the petitioners.  This was the model put forward by the DG of DRDLR the previous day.  Communal land rights in that model were unchanged to those in the Act.  The Court had asked a representative of the Minister, who said that the Act would not be pursued.  There had therefore been no further argument, and yet the provisions were now being put forward again.

Prof Cousins said that the authoritarian properties had to be separated from the emancipative properties of the system.  The solution should look for the legal recognition of rights based on custom with a customary dispute resolution mechanism.   Rights should be shared through local dispute resolution mechanisms.  Local processes should ensure safe tenure.  There were alternatives to transferring titles to traditional councils.  Rights should include gender equality.  People should be able to opt out of subjection to chiefs. 

Presentation by African Farmers Association of South Africa
Mr Roderick Duminy, National Executive Committee (NEC), African Farmers Association of South Africa (AFASA), thanked Parliament for the privilege of speaking.  His family had been farming for 200 years.  Farmers did not mince with words.  A message had to go to President Zuma, thanking him for acknowledging the rights of Khoisan people in South Africa.  In 2007 he had gone to the United Nations (UN) as their rights were not acknowledged at the time.  President Zuma had taken the bold step of recognising Khoisan rights.

Mr Duminy said that there were challenges with land, but black farmers had to be part of the solution.  The tools to do this were human capital, as farmers, farm workers and farm dwellers.  These people had been marginalised in the past.  He traced a history of his family's involvement in farming throughout the 20th century.  There was a place for large-scale farmers, but there was also a place for small-scale farmers. 

Mr Duminy said that black farmers accessed land through government institutions.  His family had had the opportunity to use the various mechanisms such as the Settlement/Land Acquisition Grant (SLAG), Land Redistribution for Agricultural Development (LRAD) Grant, and restitution process, and tribal authorities.  The Chairperson had called for solutions.  The solution that he could offer was that farmers should be part of the purchasing process.  Estate agents should not be made rich.  Viable land must be identified.  Farmers could not be successful if recapitalisation only happened some time down the line. 

Mr Duminy said that workers and landowners would have different perspectives.  Farmers needed the chance to upgrade their operations.  At present black farmers could only access land through land reform programmes.  Parliament would preside over the future of the farmers.  Some of their produce was the best quality in the world.  He asked why farmers were exported into Africa when there was land available.  AFASA was an organisation at district, provincial and national level.  Some farmers were illiterate, but were not stupid and could make a difference to the country.  This was his land and he had no intention of moving overseas.  His ancestors had owned the farm on which the presidential residence at Genadendal now stood.  A farmer could produce excellent work on just five hectares.  The Chinese had taught the country a lesson by developing the pink lady species of apple into a premium brand.

Mr Duminy said that greater synergy was needed between the Department of Agriculture, Forestry and Fisheries (DAFF) and DRDLR.  Farmers needed to feed 50 million people.  Farmers could make a difference, and black formers would support government initiatives.

Presentation by Agri-SA
Dr Theo de Jager, Deputy President, Agri-SA, was an old farmer and battled with the modern technology.  The first issue to be addressed, as a white commercial farmer, was not about 1913.  Many things could be said about the 1913 Land Act.  A fundamental injustice had been done.  There were many things that could be said, but 100 years later, those that owned the land, represented by over 400 farmers' organisations, were prepared to work to rectify the past injustices.  A farm was much more than just the land.  It was land and capital, technology and expertise.  A farm was a business.  He was alarmed at the romanticisation of the small farmer.  There was a place for these people, but only if such a farmer fitted into a value chain and knew how they would market their produce.  Failing this, small farming was a poverty trap.

Dr de Jager said that the global trend was for small farmers to fall away unless highly subsidised.  The most transformed sector in South African agriculture was the chicken industry.  Some of the black farmers in this sector were now falling out because of imports from South America.  If farmers could not make a profit they had to leave the sector.  The communal areas had some of the richest land in the country.  Human capital was a valuable asset, and many had markets in rural areas with low overheads.  However, there was little capital investment due to the lack of security of tenure.  That was what lured investors.

Dr de Jager had a few plans to share.  South African farmers in Africa were engaging small-scale farmers.  One third of land was allocated to superfarming corporations.  One third went to members, and the remaining third was worked on behalf of local small-scale farmers.  The corporates brought in the equipment and expertise, and financed the large farmers if they agreed to mentor small-scale farmers.  All farmers paid the same for fertilisers and others supplies, but also sold their produce at the same rates. 

Dr de Jager said that this was a way to rectify the legacy of 1913.  Agri-SA had adopted Vision 2030.  The model in the National Development Plan (NDP) envisaged a rapid transition to black farmers without distorting the sector, by transferring expertise, establishing institutional arrangements and bringing transfer targets in line.  Skill transfer was needed.  Certainty was needed, but land restitution was creating a lot of uncertainty.  He quoted from a German publication which opined that the land restitution programme would do more damage than the Anglo-Boer War.

Dr de Jager said that there was still no list of farms identified for restitution in 1998.  Some 13 000 farms had been listed.  Restitution froze redistribution.  It was impossible to run a business when the whole community had to decide on the farming policy.  Once there were land claims on a farm, these had to be finalised before redistribution could take place.  The value of the farms was in jeopardy.  Financing was not as easily forthcoming, and investment was stagnating.

Dr de Jager said that there was no banana farm without a land claim on it.  These farms were in Limpopo and northern KwaZulu-Natal.  A banana tree had to be replaced after about twelve years.  The cost of renewing the trees on an average farm was about R350 000.  There was no incentive to make this investment given the uncertainty.  The average age of banana trees had increased from six to ten years, and production was suffering.  Most of the bananas were now coming from farms just across the border with Mozambique, and the South African industry was going through the floor. 

Dr de Jager said that alternative plans had been put forward such as shared costs, black economic empowerment (BEE) incentives, empowerment over time and other alternatives.  Models had been developed for finance and been applied in other African countries, such as mechanisation pools.  Agriculture would not be transformed with hoes and bank loans, but the best technology was needed.  The sector was ready for revolutionary changes, but needed government support.

Mr M Swathe (DA) said that if a person had a freehold title then he would be more empowered.  People in the rural areas, if given farms, could subdivide farms.  This would allow more people to have land.  He asked about a mixture of ownership models.  He liked the ideas of AFASA.  People had been given farms but they were not utilised. 

Ms A Steyn (DA) had travelled through various areas.  Farmers battled to sell their produce in the communities as they had their own preferences.  Markets were the problem.  She had asked the Minister of Rural Development and Land Reform if white farmers could be brought in to assist black farmers.  She asked if there was a need for such a system in communal areas.  The Minister had said that the land in the communal areas was the worst in the country, but this was not true despite overgrazing and a lack of irrigation.  She wanted more clarity on title deeds.

Ms P Ngwenya-Mabila (ANC) asked what repercussions there would be for people opting out of tribal authority.  If a worker died, his family would have to move on.  There might be people living on farms where no one worked any longer, and they would also be evicted from farms.  Farm dwellers needed rights of dwelling.    Members had been told that cattle were watered from the river, but the water did not go to the houses.  People had to drink with the cattle although the farm owner had water.  Dignity was needed.

Mr Moses Mayekiso, Member of the Provincial Legislature (MPL), Gauteng, said that Agri-SA did not want subsidies, but some of its members complained about dumping of foreign produce on the SA market.  This would stunt the development of agriculture in the country.

A representative of the Congress of Traditional Leaders of South Africa (Contralesa) said that the workshop was about the 1913 Act.  The Constitution was a problem in the property clause being regarded as untouchable.  During the Convention for a Democratic South Africa (CODESA) 1 and 2 negotiations, a peoples' movement had been coerced into accepting this private property clause.  The Constitution protected private property.  In his community in the Mtata area, the Constitutional Court (ConCourt) had taken a decision ordering that the land belonging to communities should be returned.  One of the municipalities had argued that they agreed with the ConCourt, but there could be no claim on developed land.  Agri-SA was stirring up fears about food security.  A people’s government must take the side of the people.

Another Contralesa representative said that there was a lot of focus from land taken after 1913.  Communities had been destroyed prior to this date, and there were records of colonial genocide, especially the Khoi and San people.  A democratic state had the duty to go back further into history.  He also recalled the landing of Francisco de Almeida in 1510, where his crew had tried to abduct a Khoi person and had been killed in battle with the Khoi.  Land did not grow but people did.  Ways should be found to hasten the process of getting the land back to its rightful owners.

An MPL from Limpopo said that it could be done, and easily.  Limpopo farmers were delivering their produce in Johannesburg.  R11 billion had been made through these transactions, but there was no sign of the money being invested in the Venda area.  The produce was not properly packaged and was thus not properly certified on arrival at the market.  There were no packing facilities in the Venda area.  In KwaZulu-Natal, the King had allocated tracts of land to the traditional councils.  Organised agriculture was not responding, but the Chinese were interested.  This worried him.  He was tired of bad stories.  He asked for more interaction with Parliament.  Study groups would be of a lot of help.

A speaker who declined to identify himself said that outstanding land claims had to be addressed first before there would be progress.  An audit was needed on the potential of the land.  Previously productive land was being used for purposes other than agriculture.  The focus only seemed to be on agriculture.

Ms P Xaba (ANC) said that land should belong to South Africans and not foreigners.  A Zimbabwean was using land in Midrand for cropping while cooperatives could not get access to land. 

Mr Mduduzi Shabane, DG, DRDLR, welcomed the presentations.  CLaRA was no more.  If the Constitution was to be implemented, land should be owned by the people who lived in the areas.  Not doing anything about this would not take the country forward.  While Agri-SA was involved on the African continent, they did so by means of leases and yet they advocated freehold titles in South Africa.  There was an initiative directed by the President where 1 million hectares had been identified in the former homelands.  The audit was on the infrastructure available in these areas.

Mr Andre Meyering, DAFF, said that communities of practices were voluntary organisations which came up with best practices in certain areas.  Such forums should address issues such as land reforms.  The forums consisted of people with passion in their areas, facilitated by government.  Not much had been said about success stories.  Tools were available to do this.  He quoted another network that did this.  The Department had a new policy that would be discussed with DRDLR.  Areas could be zoned exclusively for agriculture.  A land register should be established with DRDLR.  The potential of natural resources should be determined.  Finally, there was room to put together a user-friendly paper on the scopes, roles, responsibility and procedures of the different role players. 

Mr Sizani asked what Prof Cousins meant by freehold title within a group.

Prof Cousins said that subdivision of farms was an excellent and urgent idea.  A mixture of large, medium and small farmers was needed.  The minority of commercial farms produced the majority of crops.  Some commercial farms could be re-allocated.  There were many farms that did not pay tax, and the total number of farms could be far more than 30 000.  Many farmers could increase their supply to informal markets if supported. 

Prof Cousins had been surprised to see that 75% of the land in some of the districts in the Transkei area was in fact not of good quality.  Some of the land was good but not all.  An important point had been made by Dr Mulaudzi the previous day.  People moved away if they could not agree with the local chief.  There had to be accountability mechanisms.  He referred to a community that had given a cash pay out by platinum mine.  The leaders were not accountable, and the money was gone leaving the community in poverty.  By re-opening land claims, an unintended consequence would be that current, unresolved claims would be frozen for five years.  The amendment to restitution was not a good idea, and it would be better to speed up the redistribution process.

Prof Cousins said that the boundary issue was critical.  There had been a pitched battle in the Kongola area over a tribal boundary as recently as 1944.  There were alternatives, as illustrated by the DG.  There could be security of tenure with leasehold as well as freehold.  He suggested that the rights of people in communal areas should be strengthened.  There were shared rights in communal systems.  African systems were about families as well as communities.  Investing authority in groups could have serious negative consequences without accountability. 

Mr Duminy responded that there was a practical example in the Western Cape, where a DRDLR official called Makwinti was staying close to the farmers and was of great assistance to farmers.  Market access was a serious challenge.  His organisation encouraged farmers to remain part of the mainstream.  Only four black farmers were supplying produce to the Cape Town market.  Farmers needed to be aware of market opportunities.  One of the big challenges with farms being purchased was the lack of documented water rights.  Dry land was of no use.  Soil testing was extremely important.  There had been an increase in yield in the Overberg from 2.5 to 6 tonnes without irrigation after proper soil testing. 

Mr Duminy said that AFASA was working on giving workers shareholding on the farms on which they worked.  The sense of ownership would boost production.  Tenure of security was being encouraged for new farmers.  Farmers failing to supply water to their workers should be exposed.  He came from a place where his title deed dated to 1858, but there were challenges.  A lot of subtropical farmers were selling their produce without brand names.  This was an essential element of marketing. 

Mr Duminy said that land claims needed to be addressed.  Foreign ownership was happening in South Africa, and was a huge challenge.  An audit needed to be done on land not being utilised.  Agricultural land was being turned into game farms.  There had been some highly successful projects, and he mentioned one example of a grain farmer in the Overberg who had made significant expansion to his activities and capital investment.  More talks were needed on land reform.  The questions posed by Members made the farmers aware that government was serious about land.

Dr de Jager said that legislation had been dumped on farmers regarding evictions.  There had been unintended consequences.  He mentioned an example of a supervisor on his farm who had been dismissed, but he had taken over two years in court to evict the person.  Many of the female staff who had been harassed by this person left because the person was still living in the same farm compound, and this man also stole goats and produce.  The farmers would love subsidies, and were unhappy that foreign farmers enjoyed this benefit.  The Portuguese government had approached Agri-SA for farmers in a big irrigation scheme.  Because of subsidies and overprotection, Portuguese farmers were no longer competitive and the presence of South African farmers would encourage more competitive farming.  The tea industry had collapsed due to imports.  The game industry was the most competitive.  Agri-SA did lease land in other countries, which was why they had proposed that the government buy farms and lease them back to the farmers during the interim phase.  Namibia had been much more successful in land reform.

Ms Annelise Crosby, Agri-SA Legal Services Director, said that farm evictions were a sensitive issue.  There would always be conflicting rights.  An investigation would be funded by the International Labour Organisation, in which the causes of tension on commercial farms would be investigated.  There had been a provision in the Green Paper on tenure farms.  A completely new policy had been included in the draft, and the policy would soon go to Parliament.  Mediation was a strong element.

Mr Sizani said that in Tanzania, the colonisers had only taken 1% of the land and in Zambia 3%.  In Namibia it had been 44%.  In Zimbabwe it was 50%.  In South Africa, 87% had been taken.  Unlike in Zimbabwe, there was no agreement with the former colonial power to pay compensation.  Drastic steps had been taken in Zimbabwe.  Strenuous measures would have to be taken in South Africa and the process would not happen overnight.  There had already been 20 years of uncertainty.  This should be a collective responsibility, not just that of government.

Presentation by National House of Traditional Leaders
Ms T Sunduza (ANC), Chairperson, Portfolio Committee on Arts and Culture, took the chair for the final session assisted by Ms C Mabuza (ANC), Chairperson, Portfolio Committee on Public Works.  She reminded presenters of Parliamentary privilege in what was said in the House, and this could not be challenged outside the House.

Kgosi F Makgeru, Deputy Chairperson, National House of Traditional Leaders (NHTL), said that the NHTL spoke on behalf of all traditional leaders. This did not prevent leaders from hearing issues pertaining to them.    Rural development needed to correct imbalances created by apartheid, and could not be the sole responsibility of the DRDLR. All spheres of government had to work closely together. The role of traditional leaders was important. Traditional leaders should be fully involved in any development agenda. Any initiative without the support of traditional leaders was bound to fail. Municipalities and traditional councils had to work together. People wanted to see their lives changed. There could not be an endless tussle with municipalities. 

Kgosi Makgeru said that any effort to sideline traditional leaders was bound to fail.  In the not-too-distant future the country would be undergoing elections, and rural communities would be subject to intimidation. If the level of personal development could be raised in rural areas, and people were more aware of their rights and the obligations of the state, they could not be pushed around. Raising levels of literacy and creating understanding the role of the organs of state would help with this. Deep rural areas were not being reached.  The people bearing the brunt of policies and legislation were not given the time to reflect on such legislation.  The contribution of rural participation was minimal due to the level of personal development.

Kgosi Makgeru said that since 1994 there had been progress in a number of areas. There were still some rural areas where there was still no clean water.  Infrastructure had a limited life span due to shoddy construction and vandalism.  A sense of ownership of public properties was needed. The NHTL still felt that the country was on the right track.

Kgosi Makgeru said that Nkosi Phathekile Holomisa, President of Contralesa, had said the previous day that the two bodies shared the same opinions.  The NHTL commended government on reopening the land claims process.  The withdrawal of CLaRA was a serious drawback to rural communities.  There would be little support for any legislation that would move entirely away from communal ownership.  Academics had made calls for individual title, but the people did not share this view.  Government should strengthen its support to emerging farmers and landowners.

Presentation by Legal Resources Centre
Mr Tembeka Ngcukaltobi, Legal Resources Centre (LRC) Director: Constitutional Litigation Unit, said that there were some issues over communal land rights, starting with the role of traditional authorities.  While the Constitution provided for traditional authorities, it did not say how this should be achieved.  The next problem was the question of tenure, and the third resource allocation.  The question was of how entitlement was determined. 

Mr Ngcukaltobi said that the Constitution said that the role of traditional leadership was recognised in terms of customary law.  Parliament could pass national legislation, which could amend customary law where appropriate.  However, it first had to be established what customary law was.  Hearing from the people should not be confused with hearing from traditional leaders.  He suggested that Parliament was obliged to listen to the traditional leaders, but also to the people on how they lived their lives in the modern context.  People did not want chiefs to be installed over them.  In terms of resource allocations, there were themes of intense contestation.

Mr Ngcukaltobi said that LRC did not dream up these issues.  People brought matters such as mineral and water rights to them.  Municipalities told people to take their complaints to the traditional leadership, but often they did not recognise such leaders. 

Mr Ngcukaltobi said that CLaRA had been declared unconstitutional, but the elements contained therein were now re-emerging.  Traditional councils would now hold titles.  Land would be allocated by these councils, which would also resolve disputes.  This was a recipe for conflict, as the councils would be deciding on matters on which they had already made a decision.  There must be a move away from the traditional councils, and power should be dispersed to the people themselves.  People cared about democracy, and did not just wait for resources to be delivered.

Mr Ngcukaltobi continued that there was an issue regarding boundaries.  One answer was to let the people decide themselves.  At the ConCourt, Justice Sandile Ngcobe had written a unanimous judgement that tribal law was the basic element of law in the tribal areas described in CLaRA.  These tribal authorities had been transformed into traditional councils.  CLaRA applied in traditional areas, as described in the Black Authorities Act, and their powers were entrenched in CLaRA.  This was legislation passed by the democratic Parliament. 

Mr Ngcukaltobi said that the boundaries were from the current legislation.  Section 28 of the Act should be scrapped so that the tribes could determine their own boundaries.  If there was agreement that traditional councils alone should not make decisions over land distribution, whatever Parliament intended in the Constitution was making a fourth tier of government.  The powers relating to resources should fall within the three elected spheres of government.

Land rights and mining
Mr Mmuthi Pilane came from a village in a mining area in the North West province.  He represented the Moklabe community.  He was the chairperson of the council representing the community.  In 1932 his forefathers had been forcefully removed and resettled on a farm bought by a number of clans, Renosterkraal.  This and other farms had been bought for grazing in 1926 and 1919. Wettelfontein had then been divided into three areas.  There was an open-cast platinum mine in this area.  Ancestral graves had been removed when the mine was built.  A complaint from the community had been ignored.  The Voortrekkers had not recognised the claims of his forefathers, and they had been reduced to tenants.  Some of the clans had been separated before being consolidated in 1949.  In 1998, his father had submitted a claim for Wettelfontein.  They had asked for the restoration of the land and mineral rights.

Mr Pilane said that in 2004 the Mineral and Petroleum Resources Development Act (MPRDA) (No. 28 of 2002) had been enacted, giving the government control of mining rights.  Although people were allowed to apply for the conversion of old to new order rights, this process had mainly favoured white people.  His people did not have the title deeds, and their claim for mineral rights had been rejected.  They had been told that even if the land was restored, the mineral rights would not be part of the deal.

Mr Pilane said that the MRPDA had trumped a land claim of 1998.  All landholders were treated in the same way, including those with no title deeds or without mining rights as a result of discriminatory measures.   Old rights had been carried over to the North West government.  In eighteen years these accounts had not been audited, and the amount of mining royalties due to the tribes could not be ascertained.  The chief had traded the mineral rights in the name of the tribes.  There had been some complicated deals with the mining companies.  The mine had a 15-year life span.  The families on the land had not been included in the decision.

Mr Pilane said that the decision was made by a man on the mining company whose family did not come from the area.  This person had stood trial for corruption.  Mr Pilane's father had been dismissed when trying to assert his rights.  Three schools, a post office, a community hall and a clinic had been built at Welverdacht. 

Mr Pilane had approached various structures.  Efforts to hold the official, Mr Mhosi, to account had failed.  This included petitions to the President and provincial and national Parliament.  The family had written to Mr Mhosi to tell him that they were withdrawing from his administration.  The result was an interdict against Mr Pilane.  Grievances were ignored.  The family had written to various authorities of their intention to establish themselves as a separate traditional authority.

Mr Pilane said that the Department of Traditional Affairs had tried to set up a meeting but Mr Mhosi had been absent at both the original and the rescheduled dates.  A meeting of all the clans had been set for 4 February 2010.  On 8 January 2010 a summons had been served on him, barring any secession from the tribe.  This was set aside in 2013 by the ConCourt.  The Court ruled that the rights of freedom of assembly had been violated.  It was vital that all dissenting voices should be heard.  They had been stripped of their mineral rights while mining companies continued to enter into deals with Mr Mhosi.  He was officially recognised by the North West government and was still party to mining deals.  The MPRDA denied them their rights.

Ms Mabuza said that Mr Pilane had some bottled up frustrations, and had deserved some extra time.

CPAs and traditional leaders
Mr Lamson Makuleke, Park Manager, Makuleke Community/CPA, was from Limpopo.  He came from an area in the north east part of the country.  His family had been evicted in 1969.  The territory of the Pafuri tribe had been declared part of the Kruger Park.  There had been a traditional leadership structure.  Many attempts had been made to remove the people, but had been resisted by the leaders.  When they were removed, the Police had come and forced the people to burn their huts at gunpoint.  When they arrived at Nklaveni, the National Parks Board had argued against the land claim that it was merely an exchange of land.  Their former area had been 26 000 hectares but they were now on just 5 000 hectares. 

Mr Maluleke said that another traditional authority was claiming the Pafuris as his subjects.  The new government had made it possible for his people to claim the land.  He had done this by virtue of his powers as Minister of Justice in the Gazankulu government.  The Pafuris had fought against this to the present day.

Mr Maluleke said that Chief Minga had opposed their claim on the basis that they were his own subjects, and he should have put in the claim on their behalf.  The objections were eventually withdrawn, and the land claim had been awarded in 1998.  Agreements had been signed with various departments.  The land had remained as part of the Kruger National Park.  There was now a thriving ecotourism business and this was creating employment opportunities. 

Mr Maluleke said that the CPA was still functional.  The community had challenged government on the issue of CLaRA.  Whether they won or lost the claim, they had had the chance to air their views.  In terms of CLaRA, the ownership of the CPA could have been claimed and the tribe would not have had any say in their affairs. 

Mr Makuleke said that CPAs would create social disorder, something he would not expect of an ANC government.  All the resources were being taken.  There was a good relationship with the traditional leadership.  Chief Makuleke had been a chief at one stage.  They were not at loggerheads with traditional leadership.

Mr Makuleke was not sure if the proposal on communal land should be in accordance with the book written by Mr James Ferguson.  Reading the document submitted by DRDLR, it was an indirect return to CLaRA.  Government must take heed of the number of CPAs who were still waiting for their land despite awards in their favour.  He was scared of the direction being taken by the country.  Land transfer was part of the Constitution.  The government could be taken to court by his people.

Mr Makuleke called on the government to allow communities to choose their own CPAs.  The Radushai Commission recommendations had not been implemented.  There should be proper and transparent consultation.

Women's land rights
Ms Sizani Ngubeni, Rural Women's Movement, KwaZulu-Natal, bemoaned the fact that in terms of customary law, she was not entitled to make Independent representations to tribal authorities. She had to be represented by males. This was a legacy of the Native Land Act of 1913.

The meeting was adjourned.


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