Restitution of Land Rights Amendment Bill [B35 - 2013]: public hearings Day 2

Rural Development and Land Reform

29 January 2014
Chairperson: Mr J Thibedi (ANC)
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Meeting Summary

On Day Two of the public hearings on the Restitution of Land Rights Amendment Bill, there were moments of political tension. Some of the concerns that needed to be addressed were the exclusion of pre1913 claims and how that affects the Khoi and the San people; issues of betterment and claims by Communal Property Associations; restitution alternatives; the indpendence of the Land Claims Commission; reopening of the claims process restricted to a shorter time period; existing claims must be ring-fenced and prioritised for settlement; the recommendations of the Regulatory Impact Assessment needed to be effected; giving ownership of land that people have restitution on to traditional leaders would undermine their rights; and whether the Bill has been rushed as a political mechanism for use by the ANC during this election period.

Meeting report

Opening Address by Chairperson
Mr J Thibedi (ANC) said the processing of the Bill is in its last leg. The Committee has engaged with the provinces through public hearings; two districts per province. The aim of the Bill is to extend the period of lodgement of land claims that was closed in 1998. The amendment seeks to reopen that process. The Amendment Bill also directs that the details of claims must be published nationally and in the province in which the land is situated and not in the district alone. It prescribes new offences if a person unlawfully prevents a claimant from gaining his or her rights from this Act or when someone lodges a claim to intentionally defraud the state. Land Claims Court judges must be appointed from the judges of the High Court.

Organisational implications of the Bill are that the Commission must increase its capacity to deal with claims, employ more people particularly young people so that word gets out about the Act. The Department had commissioned a Regulatory Impact Assessment (RIA) study. Two options were provided to the Department from that assessment: (1) Option 1: retain the 1998 cut-off date; (2) Re-open the timeframe to allow for further submissions by various categories of persons and communities excluded from the current programmes. The RIA suggested Option 2 with these observations: an estimation of 397 000 valid claims will be lodged; it will cost R129 to R179 billion depending on the settlement option selected by claimants if those claims are settled within fifteen years.

Poverty, Land and Agrarian Studies (PLAAS) submission
Prof Ruth Hall of the PLAAS research unit at the University of the Western Cape said its submission was compiled by researchers specifically in the field of land and land restitution: Prof Ben Cousins, Dr Barbara Tapenda, Dr Muneeba Isaacs, Dr Gaynor Paradza and herself. They supported a restricted reopening of the claims process but thought the logic behind the Bill’s frame is flawed. Its recommendations were:
1. The reopening of the claims lodgement process must be restricted to a shorter time period.
2. Existing claims must be ring-fenced and prioritised for settlement so as not to jeopardise the chances of those whose claims were submitted during the first round of claims.
3. Successful claimants must be given developmental support along the lines of the restitution discretionary grounds and settlement planning grounds rather than having to apply for recapitalization funds since recapitalization was a program designed for the purpose of fixing projects that were in trouble.
 4. Restitution must be granted to the people who lost land and must not be used in the process for those who claim jurisdiction over the land based on Bantustan policies to reassert their jurisdiction.
 5. Claimants awarded land must be given title to that land; the reopening of the land claims process should not impede on the finalisation of the many claims that are settled but not finalised.

They welcome the amendments of the Bill such as the removal of s33 which required the claimants to provide proof that they could use the land productively which was interpreted as racial discrimination since it is not a requirement imposed on current land owners.

Understanding and analysis
There are currently approximately 80 000 claims, Parliament has been told for the past seven years that there are 3000 claims outstanding which is wrong. Many political representatives and the public seem to think the processing of existing claims is nearly complete which is not true. There are 1500 claims that are gazetted but not settled, 7000 claims that are not gazetted which means there are over 9000 claims that have not been settled at all. Additionally there are a large number of claims classified as settled where there are settlement agreements or court orders but they are not finalised. The process between settlement and finalisation takes up to 15 years especially where there are large community claims in rural areas. Of the 20 502 claims that are settled but not finalised some are partly settled, but 12 000 are settled on paper but the implementation process has not yet started. Of the 80 000 claims, 30 000 are not finalised and that is almost all the rural claims. Successful claimants still need the support of the Commission, what will be the impact on those people if the claims lodgement process is reopened?

Reopening: cost and logistics implications/ what is the nature and scale of demand
There are demands for the claims process to be reopened from those people who were eligible under the Act but who did not put in a claim for various reasons by 1998. There has not been any research to look into the plausibility of this reopening nor has there been a good reason for it to be reopened for five years.

A large majority of those that are calling for the reopening of the lodgement process are those that were negatively affected by the betterment process and whose claims were jeopardised by information provided by the Commission. It is also important to note that those who were eligible to claim or fall outside the requirements of the Act can still use remedies like ministerial discretion to acquire land to transfer it to people. s6(2)(b) of existing Act empowers the Commission and the Minister to make recommendations to provide alternative relief for those claimants who do not fall in line with the criteria of the requirements of the Act. Has the Commission used this process before for such cases?

What are the institutional and budgetary capacity requirements for expansion of the claims process
The Commission has estimated that 379 000 new claims could be lodged, 4.5 times more than those that are currently being dealt with. If restitution proceeded at the same pace, R18 billion would be needed per year to address claims. If claims were to be settled in a 20 year period rather than taking 4.5 times longer than the pace that it is currently moving it would cost R81 billion a year. This is based on current claims and so is a poor indicator since new claims may be betterment claims rather than individual household residential claims.

Pending claims v new claims
There is a need to ring-fence pending claims. Rights of existing claimants could be jeopardised if the process does not protect claimants that have already been waiting for at least 15 years. Those with unresolved claims as well as those with settled claims that have not been implemented are the two categories of persons that may be negatively affected by the reopening. There are two options: (1) ring-fence all later claims from earlier claims; (2) ring-fence only those claims which are settled against later claims but deal with the pending claims together with incoming claims. If this is not addressed those people whose claims have yet to be addressed before the reopening will realise that their rights to administrative justice have been negatively affected by the reopening. PLAAS recommends to the Committee that Parliament should not pass the Bill in its current state without taking into consideration the ring-fencing of existing claims and incorporate this into the text of the actual Bill. In summary, a period of lodgement could be justified for those who were not able to lodge their claims which could be a large number of people. It is important for the Commission to provide evidence on the scale and character of the demand and provide estimated time frames for completing existing claims as well as acquiring political direction and legal opinion on ring-fencing.

Section 42(c) and (e) of the Bill provides for Minister to delegate his powers for purchase and expropriation to the Director-General of the Chief Land Claims Commissioner or the Regional Land Claims Commissioners so this should be read together with the Expropriation Bill. The prior version of the Bill also allowed the Minister to delegate his powers to ‘any other officer of the state’ which is too broad and is likely to conflict with provisions of the Expropriation Bill so the removal of this provision is welcomed.

Appointment of Judges to the Land Claims Court
When drawing from international examples of countries that had periods of colonial dispossession, the main suggestion that arose was the need for a specialist court. The Bill proposed that the judges of the Land Claims Court should sit concurrently in the High Court and the removal of provisions that allow people other than judges to sit for the Land Claims Court. This court was meant to be accessible and relevant to communities. It was intended to be a pro-poor court but has been criticized for producing anti-poor outcomes. There are concerns raised about allowing judges to sit concurrently in both the High Court and the Land Claims Court as it would dilute the idea of having a specialist court. The term of appointment of the judges including who can appoint them must be addressed to minimise delays. One suggestion to deal with this delay would be to have the Minister of Justice or the President appoint the judges. PLAAS suggested introducing new provisions in the Bill to improve co-ordination between the work of the commission and the work of the court since previously it has been a source of problems.

Recapitalization issue
Looking at funding for development and the recapitalization programme especially where farms had fallen into disrepair with the hope of recapitalizing those enterprises which is completely different to a community having its land restored to them who wish to establish their homes and lives on the land in question. The communities should have access to state funds and support for their own land. Depending on them entering into partnerships with commercial enterprises seems completely unfair and limits the restoration of their rights in practice. The recapitalization policy states that it replaces all restitution grants and is now the only form of developmental support in the whole of the land reform programme. The Bill must include within it a reaffirmation that the rights attached to land a person owns includes a right to choose the basis on which they will use their land and exercise their land rights. The Department should fulfil its duty in supporting communities by supporting Communal Property Associations (CPAs) that hold the land and providing effective developmental support for land use and to CPAs and Trusts.

Finally the reopening of the land claims process must happen within a shorter period of time and this should be raised in discussions when amending the Bill to allow those eligible to lodge a claim to do so without expediting the existing claims.

The Department must fulfil its legal obligations to CPAs who have had their land awarded to them and provide effective support for land use and for land management to CPAs who are holding trust for land claimant communities.

There have been many new policies and bills that have come out in the last year, many of which have been adopted by the Minister without pubic consultation and many more bills will come before this committee. The overall logical coherence of all these bills is unclear. They give mixed signals, some moving in the direction of land transfer and others in the direction of state land trusteeship. This Committee and the joint ad hoc committee that met last year on the legacy of the 1913 Native Land Act called on the Department and the Minister to develop a White Paper on Land and Agrarian Reform. PLAAS reiterates that call addressing restitution, expropriation, land tenure policy for farm workers and communal areas. All of these require a joint integrated vision for South Africa as a country to move forward.

Ri’aad Dollie submission
The personal is political. The restitution of land lost through unfair and discriminatory actions is integral to the restoration of identity for the people of South Africa; it is a cornerstone for democracy. A citizenry that does not know itself and its identity is rudderless.

His great grandfather and his brother had left a substantial legacy in their ownership of residential properties in District Six as well as commercial properties on Hanover Street.

The 1913 Land Act was a milestone in the history of racial segregation in South Africa. It was the culmination of a process that started in the late 19th century and saw the consolidation of white ownership of commercial urban land, industrialised mining and agriculture and the exclusion of blacks from political engagement.

The exclusions based on the 1913 cut-off date is contentious, this should be discussed in Parliament as it is the more correct platform for such a discussion.

This submission supports partial redress of the land reform process to date. The Constitution excludes all land restitution claims before 1913 and that considering exceptions to that may be deemed unconstitutional.

The Land Restitution Bill of 1994 and subsequent bills amending this Act, including this one, prohibits individuals and communities that were dispossessed of their rights in land before 1913 from participating in the land reform process and they do not fully address the unique manner in which racially discriminatory processes evolved in particularly urban contexts. There is a large body of evidence showing that legislation was enacted in 1910 by the Union of South Africa which was discriminatory towards black people and included the degradation of their land rights.

Land dispossession was not an event heralded by the Native Land Act of 1913 as assumed by the current Act. It was actually a process that began long before.The appeals by the descendants of the Khoi San communities for example must be seen in this light.

The first urban black protest in South African history occurred as a result of the closure of the Muslim burial ground in the Boerkaap in 1884. The first urban forced removal of a black community from District Six occurred in 1901 when 5000 black families were marched out of District Six as a result of the colonial administration’s invocation of the Public Health Act since it was unsanitary for the people living in District Six. There was the bubonic plague at the time, which was brought in by the merchant ships visiting the ports of Cape Town and most of the dock workers were African and lived in District Six. They were deemed to be the carriers of the plague so they were forcibly removed to an army camp in Ndabeni. Those families would be excluded from claiming by the current legislation and would not be able to appeal for any restitution. He requested that the Portfolio Committee start a motion to amend the Constitution with regards to the 1913 cut-off date.

Land Access Movement of South Africa (LAMOSA) submission
Ms Emily Tjale said that Minister Gugile Nkwinti proclaimed that the Bill would help people like the Khoi San who were dispossessed of their land before 1913. The Bill’s official summary says it will reopen the window for land claims to allow people who were dispossessed of their land under past racial discrimination to put in a claim until 2018. The Bill provides that the people who lost land under betterment can put in restitution claims. These promises are unlikely to be realised. It seems the Bill is a ploy to gain votes for elections instead of being a tool for solving substantial land reform issues. Contrary to public statements made by President Zuma and Minister Nkwinti, the Bill does not give opportunities for descendants of the Khoi San and other 1913 claimants to put in land claims.

The current Bill is meant to review the current state of play with regards to land restitution backed by proper data and provide a review of what has and has not worked where and why. Outstanding problems should be identified based on that analysis. The Bill is too focused on apartheid; it offers no insight on what has been tried post-apartheid. It does not address the pre-1913 claims.

There is a conditionality clause on cost and the claimants’ ability to use the land productively in the other policies for example the recapitalization policy which waters down the constitutionality of restitution to offset the past injustices that came from racial discrimination. The Bill states that the person has to show that they will use the land productively.

The Bill risks opening up the floodgates for traditional leaders to claim vast plots of land which they would rule over as their personal territory. The timing and intention of this Bill, how it has come now with the lead up to elections, needs to be taken into account.

Issues for rural people that the Bill fails to take into account
The turnaround time for claims and finalising existing claims. Government must give effect to signed agreements and court orders about restitution. There had been pressure from traditional leaders.

Gender Equity and Equality
How will the Bill ensure gender equity and restoration access control and ownership?The myth of discriminating daughters-in-law, how will the commission rectify this? The Restitution of Land Rights Act clearly defines the meaning of descendant yet this definition has been misinterpreted and leaves out widows and children.

Institutional and policy coordination
What would be the sanctions to gazetted claims which contribute to inflation of land prices? What is the plan to de-gazette the gazetted claims? How is the Bill linked to other developmental challenges such as climate change, water resources, rural development, education and training?

The Bill has taken out all the post settlement support grants and has replaced it with the recapitalization policy. The budget presented by Chief Land Claims Commissioner clearly indicates capacity problems in terms of further costing which will frustrate the problem. What programmes will be implemented to ensure the economic empowerment and development of rural communities through restitution?

Land equity and redistribution protect community resource rights
How does the bill deal with population growth and how will landless rural descendants get land? Will the policies apply automatically with regards to land claim opportunities? How will the Act balance the demands of land development with community resources? How will Bill address the rights of farm dwellers already living on claimed land? The Bill did not address any of these things and as a result claimants find their rights overlapping and they have a burden to give recognition to this group.

▪ Consultation and debates should include other departments such as agriculture, water, housing, local government as well as mineral rights and energy to address the comprehensive issue of pre and post interdepartmental co-ordination.
▪ The Department can use s6(2) to make recommendations to Minister for betterment claims and for people who did not have an opportunity to lodge their claims on a case by case basis. A separate process for betterment claims can be established and other programs of land reform can be used to address betterment redress.
▪ Reconcile the contradictions in the matrix of policies within the Department.
▪ The Bill must impose sanctions to parties that contravene the Act.
▪ Adequate institutional support needs to be established, capacity of the leaders must also be looked into so as to avoid careless mistakes.

▪ The Bill cannot be adopted in its current form. It must be adapted to incorporate community concerns that have been raised.
▪ The process for consultation must be given sufficient time, perhaps a year, to make sure people’s views are heard and to allow learning from past examples such as saying all the past restitution claims acquire post settlement support to help kick start the utilisation of land.
▪ All lodged claims must be finalised before receiving new claims. The new Bill allows for the Commission to review an application should there be a claim on an already finalised claim.
▪ The Department and Commission must go through an internal evaluation or skills audit to address capacity gaps in terms of financial and human resources in order to deal with the new applications better.
▪ The Department has to devise a strategy to protect tenure.
▪ We need to have assurance that government is not just making political statements for elections, in the past the Department has refused to transfer land title to at least 34 CPAs where restitution awards and signed agreements have taken place.

Ntinga Ntaba ka Ndoda submission
Mr Mazibuko Jara said Parliament needs to work against:
- government inertia as it has been an inhibitor to solving problems of restitution and blocking the entire land reform program.
- the powerful lobby of commercial farmers such as AgriSA and their political representatives in the DA who use the current failures of government to delegitimise land reform. If their populist rhetoric is to be believed they are making Parliament and government question whether restitution is indeed a right protected by the Constitution. Parliament must make it clear that restitution is a constitutional mandate.

Reopening of lodgement claims
They support the reopening of the land claims process by the Bill as well as the core objectives. However, the prioritization and phasing of claims is not adequate to address neither current and outstanding claims nor the expected large number of more complex claims if there is to be a second period as proposed in the Bill.

Improve capacity of commission on restitution of land rights
It proposed that there is a need for National Treasury to see the importance of restitution and allocate money specifically geared towards a restitution fund. This proposal should be looked at so as to incorporate this into the 2015/16 financial budget. There would need to be a procurement of human financial and technological resources so that the process works smoothly.

It endorses the view of Prof Hall in saying the manner of support that must be relied on in this process would be settlement grants as opposed to the proposals of the recapitalisation policy which holds within it assumptions of what productive use and recapitalization mean.
It was disappointed that the Bill does not include pre-1913 claims, government should have taken this into consideration by this stage and taken into account the Richtersveld decision. In the 1994 Restitution Bill the Constitutional Court showed that there is a possibility to consider pre-1994 claims. The court did this by approaching the decision with a wide and purposive interpretation of the Restitution Act in ways that included pre-1913 claims.

s6(2)(b) is an important discretionary power given to the commission and the Minister but it is inadequate to address a systematic flaw. Pre1913 dispossession is too important to be left to be addressed through a discretionary process. There is sufficient evidence from international customary law and aboriginal title which can be applied to pre-1913 claims.

The provisions of the Bill must establish important criteria and processes for submission of pre1913 claims.

It was pleased that the Bill will provide for those that were affected by betterment claims. There is a need for an enabling provision that allows for public provision of support for betterment claims as the only way the Chatha claim reached this level of publicity and exposure was through the support of an NGO. There is also a need to take into consideration those that lived in the homelands who were not victims of betterment claims. There is a need to still consider broader rural development. For example a government task team said that betterment claims in the Eastern Cape would cost at least R12.8 billion.

For forms of compensation via restitution many are not happy with financial compensation. There is a need to explore other means of compensation. The Bill should seek to use cash compensation as a last resort.

Conflict between Communal Property Associations and Traditional Leaders
The illegitimate government of the Ciskei imposed a leader in an ethnically diverse homeland. Minister Nkwinti has made statements that have opened the door to control of restitution land and all communal land in those areas being in the control of the chiefs. The communal tenure policy states clearly that government is going to discourage the registration of new CPAs in these communal tenure areas. The people in these areas should be given the right to choose the type of communal property policies that will control their actions in those areas. They should be able to opt for either traditional leaders or CPAs and not having anything imposed on them. By this Bill being tagged as a s76 Bill it allows for those that are affected to take part in the shaping of this Bill.

The Bill must be available in all languages and must be summarised in simple leaflets and posters. The Bill and the supplementary resources must be disseminated to post offices. The consultation process must engage rural women, farm dwellers, the Khoi and the San as well as those that were dispossessed pre1913 as specific designated consultation because they are special interest groups that need to be consulted on this Bill in a manner that brings them into the process in a meaningful manner.

Surplus People’s Project submission
Mr Henry Fredericks said Government should finalise existing claims before the budget speech of the Minister. This is to ensure old claims are not forgotten once new claims come into the mix. Government should not play political games with rural communities and their needs and they should keep in mind that in a democratic state the people should govern. Claims from Nineties have yet to be addressed. The government and in particular the Portfolio Committee must work with communities directly so as to speed up the process. Claims should be finalised by the end of the year and if they are not done let the rural community know why it cannot be. People on the ground need to be aware of what is taking place.

Vulamasango Social Movement submissions
Ms. Nomgcobo Somdyalo said during the first round of land claim submissions, communities were not allowed to apply, they were actively turned away. One community applied anyway, that of Chatha, and they were awarded an out of court settlement after they had approached the Land Claims Court. This prejudices all the other communities that qualified for a betterment settlement but did not approach the courts in protest to the discrimination in the first Restitution Bill.

The reshuffling of Ministers has caused their issues to not be addressed since each new Minister approaches their situation in a different manner. There is a need for continuity when positions are taken over. She said they are in support of the Bill but there needs to be policy put in place to ensure speedy handling of claims. They suggest that betterment claims be put ahead of other categories of new claims. The proposed amendment of s2 of the old Act is supported by them as it has the potential to help the poorest of people in disadvantaged communities. It will also ensure that those that were prejudiced in the first round of claim lodgements get to realise their rights finally. 70 000 families were forcibly removed under betterment scheme.

Tladi Ya Kgahlane Land Claim submission
Ms Francina Motjoadi, representative for the Tladi Ya Kgahlane community, said their land claim was meant to be dealt with by the first quarter of 2014 but this has not happened. The Bill lacks adequate interaction with affected communities. CPAs will never have their voices heard as long as the two systems, CPAs and Traditional Leaders, are present concurrently.

Putting conditions in about the land into the process of restitution causes people who are meant to gain access to what is rightfully theirs to be excluded from being able to do so. This is being done by placing former traditional institutions over democratic institutions.

Border Rural Committee (BRC) submission
Mr Phumeza Grootboom, BRC Managing Director, said BRC supported the reopening of the land claims but it is opposed to the post-settlement grant mechanism chosen by government by way of the recapitalization policy. Recapitalization is aimed at businesses so many communities will not be able to live up to the criteria needed to qualify for such a grant.

BRC believes CPAs are legitimate structures that should take ownership of the land as well as development. State needs to play a central role in capacitating CPAs so that they can perform such functions.

AgriSA submission
Dr Theo de Jager, AgriSA Vice-President said that 13 000 farms are in limbo because they have been gazetted but have not been transferred. Most of the claims attached to this land have been settled but not finalised. These farms cannot be sold on the open market nor are they good for collateral for financiers. There are about 79 000 claims at present.

AgriSA believed it will take at least another 20 years to finalise the previous round of land claims. The main reason being there is inefficiency in the regional offices, internal conflict within the claimant structures and prolonged cases. Claims tend to list more than one farm such as the Mahopa claim that applied for an area around a river and ended in 225 productive units being gazetted. There are also issues of clashing claims such as when the Mahopa group claimed and the Mujaji group did not, even though they had lived on the land for longer. Due to security of tenure legislation, the new owners would not be able to evict them. Dr de Jager asked how far can we roll back history with regards to cultural and traditional entities?

He pointed out that the CPAs are more dysfunctional than anything else. He spoke about the job losses that had been incurred as a direct result of restitution. SA is now having to import food permanently. Land claims research stopped in 2006. The restitution process should not be opened. Some claims such as the betterment claims can be dealt with through condonation through the courts. One must privatise the receiving and dealing with claims if the claims process must be opened.

The blanket reopening of restitution scares away investors. Make a proper review of what you can and cannot do. Do not gazette farms which the state is not prepared to buy. One also needs to take into account the effect the reopening will have on claims that have already been settled. If claim process is to be reopened then it should be for a limited period of time like six months and open an investor confidence program to run alongside the process. Judgements that have already been handed down should not be affected by the new claims.

Oral Submissions
Community Leader from Gauteng Land Restitution Claims Committee

The year 2018 must be removed because by the time the Act is promulgated, the cut-off date would have been moved so instead at s2(1)(e) of the bill it must be replace by the words “five years from the promulgation thereof”. The claim must have a turnaround time of 18 months from the date of settlement because

The fact that the claims process will be reopened should be made known to members of the public through all media. Workshops for those who are illiterate and those who do not have access to news so that everyone is informed. Date of reopening must be announced before Parliament goes into recess.

Griqua National Conference of South Africa submission
Chairperson of the Council of Heads, Chief Cecil le Fleur, said Khoi and San people must be taken more seriously than they are being taken at present. The 1913 date does not take into account the Khoi and the San people yet they were the first people to be dispossessed in this country. CODESA was asked to take this into consideration but the group was not taken seriously. They come before this Committee asking that the Khoi San matters be taken seriously and to show this by including their plea in this current Bill and not dealing with it after the Bill has been passed.

Stellenbosch University submission
Professor of Sociology Cherryl Walker said that the Bill is inadequate for our current context. There is a need to broaden understanding of redress. On the financial implications of land reform, there is a need for targeted investments in education and other such sectors. Financial forms of restitution are not an inferior form of restitution. There are serious issues of dispossession and redress which go beyond those who suffered as a result of the Group Areas Act. It seems the Bill has more of a focus on rural dispossession and rural development policies and not so much looking at urban redress. Urban claims will be the large number of claims that will be lodged if the claims are reopened. Surplus People’s Project has figures which indicate that between 1960 – 1980, as a result of urban removals due to the Group Areas Act, 1.6 million people were removed from their homes. Roughly, 280 000 households were dispossessed, 66 000 urban claims lodged, so there is a huge shortfall. There are 7000 new claims in District Six. There are serious tensions within the policy. The feasibility of prioritising claims in a principled and systematic way is untenable. Information management is needed.

Mr M Swathe (DA) asked LAMOSA, with regards to CPAs and Traditional Leaders, how does LAMOSA deal with it when some people prefer traditional leaders over CPAs?

The response was that LAMOSA is a federation of communities and the traditional leaders will become holders of the culture.

Mr Swathe asked Mr Jara if it is wrong for other parties to voice their opinions or are you suggesting that Parliament must not accept other views?

Mr Jara replied that one must hold AgriSA and the DA accountable to the Constitution.

Mr Swathe asked Prof Hall with regards to the suggested one-year time frame for lodgement of new land claims, is it possible for people to lodge their claims in one year?

Prof Hall replied that there is a rationale for in putting a limit, the right to restitution is in the Restitution Act. The stakes are already high. Situations of uncertainty have already been addressed. As for budgets, money follows political priority.

Ms H Matlanyane (ANC) addressed Prof Walker, saying alternatives have not succeeded, they want land. Is it not unfair to force them to interact with government processes that have not yielded results for them?

Prof Walker responded that one should look at alternative forms of redress. Her comments were hoping to show the limitations in the Bill.

Ms P Xaba (ANC) said to AgriSA that it is clear that the people want us to take the land

AgriSA’s response was that they are aware that people do not have land and are left powerless. However, one also has examples of cases where they get land and strip it of everything until there is nothing then they leave too. AgriSA is grateful to Parliament for their support in the chicken industry as Parliament took steps to protect its own industry. There is a need to maintain competitiveness. There is a need to engage constructively. It is important to see farmers as more than just landowners. Commercial farmers are not the biggest owners of land. The land reform beneficiary does not run the risk of losing land to the bank which is a good thing but the government has made itself the primary financier which is a bad thing. In reopening, we will lose farmers. Large farmers keep growing, smaller farmers drop out.

Ms N November (ANC) commented to the Griqua representative that this government is serious about the people left behind last time, you need to relax on that one, because you are taken very seriously.

Griqua Chief le Fleur said that “we cannot relax”. The Griqua people were represented at CODESA and the UN in 1997 and 1998 respectively on a group working with indigenous people. We urged them to convince the SA people to allow the Khoi and the San to claim for their land because the cut-off date is 1913. A special rapporteur has come in and said this issue needs to be addressed. If they still do not address this, then more pressure is going to be coming from the Griqua people.

COSATU submission
Mr Matthew Parks, Deputy Parliamentary Liaison Officer, said COSATU supports allowing people to make claims who were not able to the first time around such as betterment victims. The Bill seems to have been rushed which creates unnecessary questions to arise within society. What about the impact on existing claimants? There are 2100 claims that have not been attended to which claimants have evidence that they have submitted but the government seems not to have on record. Roughly 7500 claims are still to be processed. There are also existing claims where court orders were issued in favour of the claimants and yet they could not be settled. What happens to those claims now if we reopen the process? if there was already a delay, will there be a further delay of five years or more? What happens if there are two claims on the same piece of land?

On the 1913 cut-off date, it had been mentioned politically. They wanted to know the practical implications of dealing with claims arising before 1913. Given the nature of migration, would people from Zimbabwe come to claim land in KZN? We cannot go all the way back to land taken by van Riebeeck.

The role of traditional leaders, though they are a legitimate form of leadership, the fear is that reopening claims will benefit rural leaders in a manner that would prejudice rural people.

How would one give land to the descendants of the Khoi San? It is a difficult situation to work with but the practicality of the matter needs to be addressed.

Mr Parks said that they are happy that the productivity claim has been removed from the Bill. This Bill is about land restitution and is not a productivity issue.

With regards to value of land, it is not desirable to place that task in the hands of judges since it is not their field of expertise. A concern was that the land claims court is a part time court and that causes a further delay in the process. The Mala Mala compensation of R1 billion was excessive. There should be no compensation for land if the land was taken illegally during apartheid.

Centre for Law and Society (CLS) submission
Dr Aninka Claassens, CLS Senior Researcher, said issues of landlessness are serious and painful. It was a devastating experience to hear from people about their concerns. Will this Bill do more harm than good? It might obstruct outstanding claims. 30 000 claims have not been settled in the past fifteen years and most of those are rural claims. The Department itself has said that it will cost R179 billion to fund the reopening of claims. Yet R22.5 billion has been spent in the past fifteen years. The bill created a right for reclaiming without measure. It would seem to be a political ploy in this pre-election season. There is a need to look at the context in which the Bill is being processed.

In the Chatha claim, the Minister said they could not get land. The Minister has said that Communal Property Associations (CPAs) should no longer be allowed to own land acquired through restitution or redistribution within ‘communal areas’. The new Communal Land Tenure Policy states that the “registration of new CPAs on traditional communal tenure areas be carefully considered and principally discouraged”. The Minister is still trying to implement the Communal Land Rights Act. There is no historical basis for the argument that traditional leaders have exclusive authority over land. Section 25 of the Constitution guarantees property rights and the right to restitution. Giving ownership of land that people have restitution on to traditional leaders would undermine their rights. If you trump boundaries of land from which people were removed and impose the legal boundaries of the 1951 Act you undermine the people’s constitutional right.

It was a concern of CLS that the Department will reopen claims and allow traditional leaders to hand in counter-claims against CPAs who they have refused to hand over land to previously. This is the dynamic in the process. If it is not the dynamic, then an amendment to the Bill has to state that the processing of existing claims will not be held back by the submission of counter claims. President Zuma announced this Bill, saying it will help the Khoi San but it will not help them because of the 1913 cut-off. The Constitution acts as a floor of rights. If Parliament wanted to go beyond 1913 there is nothing stopping them.

The question stands, then, why the hurry to process this Bill?

Legal Resources Centre (LRC) submission
Mr Henk Smith said that the LRC welcomed the deletion of clause 9. It was concerned that the clause 9 conditionalities could be snuck in through claim settlement that elevated feasibility and productivity as prerequisites. There must be a high level of vision and a White Paper as a template to measure this Bill. Tenure reform, land redistribution and developmental support also have their equal place.

In December this Bill was tagged s76, one cannot have a six week turnaround time for processing this Bill before the elections, so why the rush?

The Regulatory Impact Assessment (RIA) was released on the 6 August and the Bill was published in September. The RIA is not carried through into the Bill or the policy statement. The RIA evaluates and makes suggestions on the Bill. The RIA estimates that there will be 400 000 claims and there should be a phasing in of the Bill and phase one should prioritise old claims. Pre-1913 dispossessions and claims for heritage sites, symbolic restoration and historical landmarks should be dealt with under the National Heritage Resources Act and the Redistribution Act and there should be a stakeholder indaba referred to in page 88 of the RIA. The RIA further lists 15 amendments on page 121 and 14 on page 30.

The RIA recognises that in the current redistribution 20 000 claims have not finalised after 20 years. That is a 25% deficit after 20 years. Within RIA, it states that there are 400 000 claims to be dealt with over 15 years. 60 000 claims had been dealt with using R23 billion, 400 000 claims are going to be dealt with using R180 billion.

Budget challenges
On 31 October 2013, the Department reported that over the past five years restitution made up R15 billion of a R50 billion allocation to the department. With this proposed amount of R180 billion there will be an increase from an average of R3 billion a year to R12 billion a year average. Four things are needed:
- A strong independent commission
- Ring-fence prior claims
- Transfer of land must happen within twelve months unless the court directs another arrangement
- Real redistribution – aggressive redistribution, tenure development and pro-poor development programmes for pro-poor and small scale farming is necessary so that restitution does not carry an unfair burden.

Referring to page 5 of the LRC submission, he quoted from an Ad Hoc Committee report commenting on restitution where the conclusion the chair came to was that large sums of money are increasingly benefiting the few.

Restitution cannot be in charge of NDP targets. On slide 8 of the LRC PowerPoint presentation, they refer to the making independent and strengthening of the Commission at a policy level and not to be overwhelmed by s42(d) imposed by the Department. Their proposal is that all settlement agreements come before the court and be made court orders to ensure certainty for all parties involved. Finally, there is a necessity to capacitate the Commission and there should be specific legislative provisions.

They proposed that there should be an appointment of regional legislative commissioners. On page 20 of the LRC submission, s16(2)(a) should be amended to say that the Commission should report to both Parliament and the Land Claims Court on all settled claims and not only, as it currently says, to itself.

On Slide 9 and page 80 in the submission: there should be a period of 12 months to transfer. Write it into the law that if the claim is settled, there is 12 months to transfer unless you go back to court and you make another arrangement. Claims finalised before this provision becomes law should be required to be transferred within 12 months of its promulgation. Let us test our resolve by dealing with the 20 000 claims in the next 12 months since that is the target we are setting for ourselves if we plan to deal with 400 000 claims in the next 15 years.

Prior claims must be ring-fenced and insulated. It means an amendment of sections 1, 10, 11, 29 and 35. This will bring the security for the 20 000 outstanding claims and deal with the expectations because we cannot wait for five years before we start addressing the backlog of 20 000 claims. It is required to be implemented as legislation. It does not mean that later claims will be prejudiced. It will be rational and justifiable with the guidance of the Constitution.

Do we need new law for betterment?
Customary land tenure has been so neglected which is wrong since it affects so many people. There is still no statute that provides for people living on customary land. The Green Paper on Land Reform also excluded it from its ambit. Restitution policy did not mention it either which is odd. In 2013, the strength of customary tenure is very little. In 2003 Traditional Leadership was entrenched in the Traditional Leadership and Governance Framework Act. The mechanisms in that Act that were supposed to ensure the democratisation and accountability of those traditional leaders, have all failed as the Ad Hoc Committee referred to this failure. The traditional leaders have begun to impose themselves beyond the power that the government had bestowed upon them by the Constitutional Court in the certification judgement for communities that are under traditional leadership. The Restitution Act has been for a long time one mechanism for communities within the jurisdiction of community leaders to assert their rights against unaccountable leaders. The LRC thus urges this Committee to ensure the Restitution Act by recognising communities and sub-communities - this remains a mechanism to be used for communities. Some traditional leaders have said there cannot be any ownership of CPAs within their jurisdiction but there is no legal basis for this assertion. The LRC is concerned about the mention of the rejection of “communities within communities” as seen on page 20 of the latest Restitution policy because it is bad for investment but it is crucial for communities who need to assert their rights to property as Dr Claassens has mentioned. There is a need for the court to assert and protect CPAs that are within traditional council jurisdictions. There need not be a tension between the two. This can be an important part of the democratization of traditional leadership structures and land holding in rural communities and we therefore encourage this committee to not ignore this very crucial tension.

The purpose for Land Claims Court
The challenge with this court is the lack of permanent employees at the court. The solution given by the Bill is that the pool should be narrowed so that the JSC can only recommend candidates from the current pool of High Court judges. This usually leads to delays which is one of the biggest problems in the restitution process. Estimates show that if only 1% of the Regulatory Impact Assessment’s estimated valid claims are heard by the Land Claims Commission and if each case leads evidence for three days the court would face an additional 11 910 days of hearings which is 6.5 years of hearings for five full time judges if they never go on leave. So to limit the pool from which to extract judges is a mistake. It would be better for the Land Claims Court to copy the model of the Labour Court which emphasises knowledge of the relevant field, in this case land rather than being a current High Court Judge.

A member of the Commission commented saying there is a Communal Property Associations Act which requires the Commission to transfer land into the possession of the claimant community. There are times when there are internal problems that stop the transfer from being able to be done because of vetting or because it is state land and so forth. There has been no policy to say that land cannot be transferred to CPAs.

Ms N November (ANC) said that this is not about elections or the ruling party because the Committee itself is a multi-party committee. “I do not think we have rushed the Bill, we have gone around the whole country, all nine provinces”. Why must there be an independent commission? Who will pay the commission and who will be a part of this commission. Let me stop there, I am getting worked up.

Ms Nomboniso Gasa of the Centre for Law and Society said that it was on record at the Land Divided conference that Minister Nkwinti had informed them that he had given instructions for the land not to be transferred to CPAs because of a number of issues.

The Chairperson replied that it would be difficult for us as a Committee to make any determination on this information unless you provide the Committee with a written statement from the Minister but for now we cannot debate that point because we do not have this information.

Mr Henk Smith responded to the question ‘who will pay the proposed independent commission?’, saying that a commission is an independent body, but this commission had become indistinguishable from the Department. There is a requirement for the commission to be autonomous. The Chief Land Claims Commissioner and one Regional Claims Commissioner is currently independent and coming from outside. You strengthen the commission by employing independent commissioners who can lead the commission. It is a problem to say that the commission must report to itself, it must report to Parliament and to the courts. The proposed independent commission like any other official body should be paid for by government funding like similar institutions under the Constitution or to similar other government bodies because it is very important that the issues must be addressed at speed. The importance of the commission must be raised.

Ms H Matlanyane, ANC, said it was unfair to generalise and paint a picture that all traditional leaders do not care about their people. Some of us can bear testament that there are traditional leaders that can care for their people. For some of us our tradition is our culture.

The response was that when given such a limited amount of time to speak, one tends to overstate matters. The speaker did not mean to generalise but had come to speak for those that are not fortunate enough to have caring traditional leader and those whose CPAs are not being given the platform to speak out.

The Chairperson commented that the issue of land is very emotive but we are called upon to address it. It was said by the late President Mandela that we can use issues like these ones, very vexing issues to build a nation instead of dividing a nation and I think all is not lost. We can find a way of addressing this in a manner that shows sympathy to those who do not have land.

There are men and women crying before young people and it affects us as members of this Committee. Thank you for handing in your submissions. South Africa can rise above and resolve matters that others cannot. We must leave today keeping in mind what legacy we want to leave as leaders in this country. On the issue of the Khoi, what we are going to do as a Committee is to try find out from the Department how far they are with developing the policy. The Constitution does not allow them access to hand in a claim but we will definitely make sure that the issue of the Khoi and the San must be dealt with and taken seriously.

On the issue of Mala Mala, Mr Thibedi said that he wished he could hear many voices condemning it but there is deafening silence from other quarters. Thank you for your participation. The Bill has been tagged a s76 bill and so it will have to go through the six-week cycle of the National Council Of Provinces.

Meeting adjourned.


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