Deeds Registries Amendment Bill; Sectional Title Amendment Bill: Departmental responses to submissions; Commission on Restitution of Land Rights Annual Report 2012/13

Meeting report

Deeds Registries Amendment Bill: Departmental responses to public submissions
Mr Brian Mbatha, Acting Chief Registrar of Deeds, Department of Rural Development and Land Reform, provided the responses on submissions received on the Deeds Registries Amendment Bill of 2013. There were two comments from the public, Mr N Gcingca and Mr B Macnab. Mr Gcinga made a presentation on the history relating to the Gcinga family heritage and land involved in such a heritage. In response, the Department of Rural Development and Land Reform (DRDLR or the Department) asserted that the issue raised did not relate specifically to the provisions of the Deeds Registries Amendment Bill. Mr Gcinga was therefore advised, at the public hearings, to approach the Land Claims Commission for advice and assistance in dealing with the lodgement of a land claim. Mr Gcinga also referred to the incorrect spelling of his family surname in certain registered deeds. The Department responded that section 4(1)(b) of Act 47 of 1937 (the current Deeds Registries Act) may be invoked to rectify the incorrect title deeds. He needed to approach a conveyancer to assist him in the lodgement of the title deeds in the relevant registry for amendment.

Mr Mbatha said the proposals received from Mr Macnab also did not relate specifically to the Deeds Registries Amendment Bill. Mr Macnab proposed the registration of a ‘licence’ (similar to a car license) in order to transfer ownership of land from the local authority to all entitled occupants. He further proposed the payment of a fee to local authorities for the registration and issuing of such licences.

Mr Mbatha said the Department did not support this proposal. The deeds registration system was not based on registration of Iicences in order to provide for ownership or the transfer of ownership in land. This proposal would possibly be better dealt with in Part 4 and Part 5 of the Housing Act 107 of 1997. Part 4 of Act 107 of 1997 dealt with the functions of municipalities, administration of national housing programmes, and the granting of housing subsidies. Title deeds relating to the issuing of housing subsidies issued in terms of the Housing Act were being registered in terms of the current deeds legislation. Further provisions relating to the granting and issuing of licences, would be better dealt with in Act 107 of 1997.

The Department concluded that no further amendments were necessary as a result of the proposals received from Mr Gcinga and Mr Macnab.

Discussion
Mr K Mileham (DA) acknowledged what the Department was saying but did not think the proposals by Mr Gcinga and Mr Macnab should be merely written off as irrelevant. Although they may not apply to the amendments being considered, it was evident that there needed to be a simplified process in the transfer of title deeds on residential property below a certain value and of a certain size. In the case of housing settlements, he said that the process also needed to be expedited, and suggested that it would be inappropriate for the Department to simply ignore the recommendations.

Mr M Swathe (DA) agreed with the submissions that the overall process in dealing with land transfers was overly-lengthy and asked the Department to give more input on the procedure.

Mr Mbatha replied that the Department currently had a process for low cost housing, and was attempting to simplify the process. He said the Department did not need to amend the current law in response to the problems and proposals raised by Mr Macnab. He noted that the transfer process for this type of housing was dealt with by the Department of Human Settlements, and DRDLR was currently engaging with Department of Human Settlements (DHS) to address the issues. The Housing Act proposals were not relevant in respect to the amendment now being discussed, since the Bill dealt with how to register, whilst the Housing Act dealt with what to register. Although the proposals by both commentators were relevant in themselves, they were not pertinent to the context of the current bills being discussed.

The Chairperson asked if it would be more appropriate for this Committee to refer the proposals by Mr Gcinga and Mr Macnab to the Portfolio Committee on Human Settlements.

Mr Mbatha replied that this would be helpful.

Another Member stated that it seemed Mr Macnab’s proposals were alluding to the registration and transference of licences by a local authority. With the eventual transfer of licenses to full ownership, which would be conducted under Parts 4 and 5 of the Housing Act, he wondered if this should not be addressed with the local authorities, the response conveyed to this Committee, and the matter then brought to the Department of Human Settlements.

The Chairperson asked if the DRDLR would respond directly to Mr Macnab and Mr Gcinga, or refer them to the Department of Human Settlements or the Human Settlements Portfolio Committee. He summarised the feeling of Members that whilst the submissions were not irrelevant, the context was important, and they could not be answered in the current process. He said, however, that it would be important to respond and advise the individuals that whilst their submissions had been considered, they would be more appropriately handled by another department, to whom they would be sent.  

Sectional Titles Amendment Bill: Departmental responses to public submissions
Mr Mbatha presented the Department’s response on the submission it received from Mr PJ De Klerk on the Sectional Titles Amendment Bill. This Bill stated that the definition of ‘developer’ provided for the inclusion of an agent, or his or her successor in title, to act on behalf of a developer, for purposes of sections 4, 10 and 15B of the Sectional Titles Act No 95 of 1996 (the Act). Mr De Klerk proposed that section 4 of the Act should be amended to also provide for the inclusion of a representative to act on behalf of a lessee, in certain circumstances.

The Department supported the amendment proposed by Mr De Klerk, but said that it was necessary that the amendment be referred to the Sectional Titles Regulations Board for further discussion, as it may be necessary to also effect amendments to section 10, section 15B, and other sections of the Act. The proposal would be placed on the agenda for the next meeting of the next Sectional Titles Regulations Board.

Mr De Klerk also proposed that section 27A of the Act be amended to make reference to ‘management’ rules, and to provide for the processing and transferring of such rights to owners of sections. This proposal was not supported by the Department, in view of section 27A by the Sectional Titles Schemes Management Act 8 of 2011. The Department of Human Settlements needed to be approached for such an amendment to Act 8 of 2011.

Mr Mbatha therefore concluded that at this stage it was not necessary for the Department to propose any further amendments to the Bill. The DRDLR would take Mr De Klerk’s proposal back to the Sectional Titles Regulations Board who must decide whether it would be necessary to make the amendments suggested to the Act. If it was deemed unnecessary, the DRDLR would not need to make any further proposals, but if it was supported, then the DRDLR would return to the Committee with the suggested amendments.

Discussion
The Chairperson clarified that the Committee would communicate the results of this meeting to Mr De Klerk. He asked Mr Mbatha to clarify what meeting the Department would be having on 15 September 2013.

Mr Mbatha said the meeting taking place on 15 September was a yearly meeting that the Department held to consider the proposals submitted for the amendment of the Sectional Titles Act, and if any proposals were made here, then the Minister would be advised of them, and, if the Minister was in agreement, steps would be taken to effect the amendments.

Commission on Restitution of Land Rights: Annual Report: Department of Rural Development and Land Reform (DRDLR) briefing
Ms Nomfundo Gobodo, Chief Land Claims Commissioner, Commission on Restitution of Land Rights, tabled the Annual Report of the Commission on the Restitution of Land Rights (CRLR or the Commission). She reminded Members that the CRLR was established to solicit, investigate and resolve, through negotiations and mediation, claims for restitution from persons and communities dispossessed of rights in land after 19 June 1913, as a result of past racially discriminatory laws and practices. At the moment, this was limited to those who had lodged a claim no later than 31 December 1998.

The targets of the CRLR were contained in the Annual Performance Plan of the Department of Rural Development and Land Reform, since the Commission was one of the Department’s entities. The target for 2013 had been finalisation of 380 claims, and the settlement of 133 new claims. Claims were “settled” when an award was made by the Minister or by the Land Claims Court, and were considered as “finalised” when the award was implemented and the file relating to the claim was closed.

In 2012/2013 the CRLR settled 602 new claims, against a target of 133. It had finalised 376 claims, against the target of finalising 380 claims. 195 967 hectares of land were acquired at a cost of R1, 57 billion. Financial compensation amounting to R993 million was awarded to successful claimants. A total of 111 278 people had benefited from the restitution programme in the 2012/2013 financial year. The total expenditure for the period under review was R2.865 billion, against the budget allocation of R2.885 billion or 99.3%. The total expenditure to settle claims was R2.490 billion. The expenditure include expenditure on backlog claims that had been approved in previous financial years but where payment had not taken place. She said that in this year, a lot of expenditure was focused on new claims, as opposed to backlog claims, because new claims were easier to settle and were free of the challenges that backlog claims presented. She noted that more attention needed to be placed on backlog claims so they could reach finalisation.
 
Discussion
Nkosi Z Mandela (ANC) thanked the Department for its presentation, but said the findings raised several issues. People still had pending claims and wanted access to land, and many claims still had not been finalised. Slide 3 stated that target for the Department was the finalisation of 380 claims, and the settlement of 133 new claims. However, he wanted to ascertain how many land claims were still outstanding and how many still required to be settled in the immediate term, or in the next three to five years. He asked the general question of when South Africa would rid itself of land claims. He said slide 4 claimed that the Department finalised 376 claims, against a target of finalising 380 claims, but this raised the issue of when those outstanding four claims would be finalised. Furthermore, he commented that although the presentation stated that 111 278 people benefited from the restitution programme in 2012/2013, nothing was being communicated to the public. He asked the Department what its communication strategy was, and how it would ensure that success stories were being heard, as the government relied on these success stories in order to defend its work.

Mr Swathe asked for clarification on the total number of backlog claims that Department had yet to settle or finalise.

Mr Swathe noted that Slide 6 of the presentation stated that Limpopo had 17 dismissed claims, and asked how this number was achieved. He asked how many claims from the previous years were included in the R2,4 billion total expenditure to settle claims.

Ms N November (ANC) noted that Department had exceeded its target in settling new claims but had underperformed in the finalisation of its backlog claims. She asked where the Commission had obtained the extra financial resources to settle the new claims.

Ms November referred to page 26 of the Annual Report, referring to the lease agreement between Mondi Shanduka and the claimants in the KwaZulu-Natal province, and asked whether there was a signed contract between claimants and the Department of what they were to expect, what the details of the contract were, and whether someone was appointed to monitor the outcome of these contracts.

A Member asked the Department about the 1 488 beneficiaries in Gauteng, and were curious as to where in Gauteng those beneficiaries were located. Another question related to whether there was a list available stating the differences between the types of claims which had been finalised and / or settled.

Ms H Mathlanyane (ANC) said that she had been under the impression that the Commission would have provided an indication of the challenges faced when dealing with court cases and the financial challenges following on these. She asked specifically for an answer to these questions. She also asked the Commission whether it had a progress report on outstanding claims, which were supposed to have been addressed by March 2012, although an extension was later granted.

Mr Mileham asked how many of the 79 687 land claims that had been lodged, and the 77 000 of these that had been settled, had actually been finalised in this year. He also wanted an indication, for the remaining 2 353, of the stage that the Department had reached in addressing these claims. He also noted that 90% of claimants were seeking financial compensation instead of land restitution, which seemed to convey more of a desire for money than land, and asked whether that was a fair assumption. Finally, he questioned how many hectares were involved in the figure of R25.72 billion spent on land restitution since 1994.

The Chairperson noted that after the last meeting, he had written to the Commission in regard to Mr Gcinga’s claims but had not received any response and asked if there were comments yet on that.

Ms Gobodo firstly addressed Mr Mileham’s questions. She said that often, financial compensation was more favourable to claimants than the restitution of land, because many of the claimants opting for this option tended to be very poor and resided in deep rural areas. They often felt that getting financial compensation would take less time and would be preferable to their specific circumstances.

Mr Mduduzi Shabane, Director General, Department of Rural Development and Land Reform, added that most claimants opted for financial compensation because their lands were not restorable and the current spaces they were inhabiting could be improved with the financial compensation they received.

Ms Gobodo noted that overall, the Commission had benefited 368 000 households, consisting of 1,8 million beneficiaries, to the value of R27 billion, an included in this figure was R15,3 billion for land redistribution, R7,5 billion for financial compensation, and R4,1 billion for grants. Of the total value of R27 billion, R22 billion had already been expended by end March 2013. 1, 9 million hectares were not restored, because they were written off as financial compensation and 3 million hectares were restored. In total, approximately 5 million hectares of land had been settled.

Ms Gobodo said that, up to the cut-off date of 1998, the Commission had received a total of approximately 79 000 lodged claims, of which 77 000 were settled. From those 77 000, 59 000 had been finalised. When the Department initially started settling claims, claims were counted based on land rights lost, so it was possible to lodge a claim in a specific community for loss of multiple land rights. Over time, however, that had change, and the Commission would now count claim forms lodged instead of land rights, and each claim form lodged by a community would be counted as a single claim. In some instances there would be a doubling of claim forms lodged by different members in the same community. When these claims were first addressed there was no standardised and systematic way in how the claims would be captured and processed.

She added that there were some claims on which the Commission’s research had not yet been finalised. A claim could not be deemed valid, if the research came to another conclusion.  This led her to the question raised about the 17 claims in Limpopo. The claims here had been dismissed because the Commission, having done its own research on these claims, noted that they did not meet the requirements of the Restitution Act and were therefore not regarded as a valid claim. The claimant community would be informed of the decision and would have the option to appeal.

In respect of the outstanding claims the Commission had engaged the services of the Human Sciences Research Council (HSRC) and various universities to assist it in improving its research capacities and transfer skills to members within the DRDLR, enabling it to fast track and facilitate the finalisation of claims and backlog claims. These unfinalised claims included those subject to court disputes, and disputes between communities, and competing claims. On 15 August 2013, the Commission would be meeting with the Monitoring and Evaluation branch in the Department, to ensure that there was clear alignment, and to ensure that the targets were streamlined.

Ms Gobodo noted that new claims were easier to settle than backlog claims, because they did not pose the same challenges. Because of their size, many of the backlog claims would have to be settled in phases, and if all phases were not settled, the claims could not be deemed as finalised. However, the Commission was dedicating more time to the settlement and finalisation of those claims.

Mr Shabane answered the questions on process and communications. He said that generally, when claims were finalised, the Minister and the Deputy Minister went out to the communities to hand over the land or financial compensation.

He noted that the DRDLR would provide to the Committee a full breakdown of information on settled claims per province, not only based on quantitative information but also qualitative information, which he said would be made available to the Commission. He said that, when dealing with its backlog claims, it would serve the Department well to form partnerships with other entities, such as the HSRC and rural universities, to streamline the settlement and finalisation process. However, it must also be noted that the number of claims settled in any given year was based on the budget available in that financial year. He said the numbers reflected in the report did not include all the current claims, because some had not been dealt with in this particular financial year under review.

Mr Shabane confirmed that the DRDLR would make a report on its court cases available to the Committee. In the past, it had engaged in many court actions, taking land owners to court, but it had been dealing more effectively with those cases out of court more recently. In 2009/10, around 70% of its budget was allocated to settling court cases, but in the 2012/13 year, there had been far fewer cases and the situation had improved.

The Chairperson requested clarification on how its grants were being allocated and the criteria behind grant allocation. He said the issue of communication within government and its beneficiaries needed to be improved. Parliament had structures it could utilise in ensuring that communication was done at a level that really made the public aware of the work being done.

The Chairperson agreed with Mr Mandela that an exit point was needed to ensure that there would be no more land claims because this issue had the potential of challenging the efforts of the South African democracy. The Committees needed to come up with creative ways of responding to such issues, and the responses needed to be fair and just. There needed to be a balance between expensive land and equitable redress.

Mr Shabane agreed with the Chairperson and said that the issue of ensuring a balance between expensive land and equitable redress was a fundamental one in South Africa. The Constitution gave people a choice in the land restitution process. Although the Constitution said individuals should be awarded the right to restoration in respect to their land, it was recognised that a particular piece of land may no longer be the same land today, and therefore the question of equitable redress became a challenge. In most cases the Commission was unable to restore complainants with the exact piece of land they had lost, due to the changes the land had undergone and the number of times it had changed hands. For this reason, alternative models were needed to satisfy land disputes beyond the current model of simple land restitution. The Department was trying to bring into effect section 25 of the Constitution through the Property Evaluation Bill.

The Chairperson asked the Department what the status was of the claims raised by Mr Gcinga during the last meeting.

Ms Gobodo replied that Mr Gobodo’s enquiry was referred to the Eastern Cape office, but she would contact that office and investigate the current status of the claim.

Mr Swathe asked the Department what it would do to address the massive number of queries it was receiving from people about the status of claims.

The Chairperson said it would be beneficial if the names of all complainants were collected and submitted to the Committee Secretary, so that there could be a follow up process.

Ms Gobodo agreed with Chairperson and said that the names of the complainants collected also needed to be forwarded to her office, so she could make an assessment and come up with a plan directed to each of the provinces where the complaints were emanating.

Ms November asked who was monitoring the Commission’s strategic partners, because another Committee Members had raised an instance where a strategic partner had taken money from beneficiaries, who were then left with nothing.

Mr Shabane said the Department was aware of its challenges and was reviewing its own model to ensure that its goals were aligned with its strategic partners. It had signed an agreement with its strategic partners, which would hold them accountable for their actions.

The Chairperson thanked the Department for its presentations and reiterated that communication needed to be regarded as a priority.
  
Adoption of minutes
The minutes of the meeting on 23 July 2013 were adopted.

The meeting was adjourned.