Land Restitution Amendment Bill: Minister Rural Development & Commission for Restitution of Land Rights responses to public submissions

Rural Development and Land Reform

03 February 2014
Chairperson: Mr J Thibedi (ANC)
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Meeting Summary

The Minister of Rural Development and Land Reform briefly outlined the process that his Ministry and Department were taking to ensure a systematic approach to land reform, and said that the Land Restitution Amendment Bill was one of the amendments that flowed from the adoption of land reform policies. A further summary of other processes was tabled, but not expanded upon, in the later presentation by the Commission on the Restitution of Land Rights (CRLR), who took the Committee through a summary of the submissions made during the public hearings on the Bill, and the Department’s and Commission’s responses.

One concern was that the CRLR lacked the capacity to implement the new planned restitution, in view of the backlogs still existing from the last lodgments, but it was explained that 304 new posts had been created, that different administrative, IT and research processes would be followed, new offices and mobile offices used. A second comment asked if there was budget to settle the claims, and the Minister and Department assured the Committee of the support of National Treasury, given that land reform was a central programme of government and entrenched in the National Development Plan. The third concern related to competing and overlapping claims, including claims on land already restored to those lodging prior to 1998, but the new process was explained, and it was pointed out that there was always final recourse to the Land Claims Court. There was the fear that the re-opening of the process, would lead to market uncertainty, linked also to comments on the duration of the re-opening process. Various suggestions ranging from six months to ten years were proffered, but the current five years seemed to allow sufficient time for proper lodgement and verification. Market uncertainty was a possibility, but Members differed in their views whether it was being over- or under-emphasised, and pointed out that compensation would in any event be paid when land was resettled. There was a concern that reopening the lodgement would pose the risk of losing gains made in the settlements already effected, but the CRLR said that it was highly likely that many people had been left out of the process and bee prejudiced, so this was in principle considered fair. Some suggested that the Bill was motivated and timed as an election ploy. However, it was pointed out that it was a development from a process begun in 2009, that it had originally bee intended that it be passed in 2013, and followed the requirement of alignment to the National Development Plan.

In answer to the suggestion that the Bill was ethnically selective and still did not cater for the Khoi and San people, and there were concerns about the current wording of section 6 of the Act, the CRLR explained that there were difficulties around the wording but that the policy on exceptions could provide redress to the descendants of these groups, and recognition would be given to heritage sites and historical land marks. Many comments had been made about the position of the in June 1913, the Act and Bill would not cover their position, but that the policy on exceptions could provide redress to the descendants of these groups, as well as recognising their heritage sites and historical land marks. It was also suggested that there should not be any entertainment of claims over already-settled land but CRLR could not agree with that principle, saying that there were safeguards built in.

Many comments expressed concerns with the position of the Communal Property Associations (CPAs), conflicts with traditional structures and conflicts between beneficiaries. It was noted that institutional governance support, and accountability reform over CPAs would be put in place through other legislative amendments. There were perceptions that this Bill aimed to transfer land to the traditional councils, which meant that traditional leaders would benefit, and comments were made for and against the institution of traditional leadership and specific instances. CRLR made a comment that negative perceptions about the institution reflected “colonial” viewpoints, a point later taken up by Members, but reference was also made to sections 35(3) and 42D(3) of the Act, which were thought to offer sufficient protection. The CRLR (and the Chairperson) did not agree that the process to the Bill was “rushed” as alleged, and amplified on the public consultation process. Some submissions suggested that the CRLR should take another form; perhaps a Chapter 9 institution, perhaps be privatised, or run by independent auditors, but this failed to take into account that it as fulfilling a specific function in pursuance of a specific project, was accountable to Parliament, and the Minister had an executive responsibility. The CRLR agreed with the submissions urging for a separate category of priority claims, relating to those who had lodged claims prior to 1998, which were not yet resolved, and the Bill would be amended to include this. It did not agree with the contentions that it would be unduly restrictive to limit appointment of judges to the Lac Claim Courts to those who were already High Court judges, pointing out that assessors would also be used, and that the status of the Court would be akin to the High Court. Other comments raised that were not directly related to the Bill would be fully considered, including allegations of corruption and incompetence of staff, requests for progress reports.

Members asked that the DRDLR must respond swiftly and fully to issues raised, which had also included concerns about refusal of access to ancestral sites, title deeds not provided. They asked for further assurances that funding would be available, were divided in their views whether there was too much or insufficient emphasis on the impact of market uncertainty, and
debated the time periods, whether there was perhaps mismatch of statistics, and why it was suggested that policy could cover the situations not covered by the legislation, as well as the circumstances when alternatives to restoration of the land might apply. Members were worried about what appeared to be insufficient communication, urged that all districts be covered, wanted to see speedy and effective training of the youth assistants.


Meeting report

Chairperson’s opening remarks
The Chairperson welcomed the Minister of Rural Development and Land Reform, as well as representatives from the Department of Rural Development and Land Reform (DRDLR or the Department) and the Commissioner and Deputy Commissioner of the Commission on the Restitution of Land Rights (CRLR or the Commission). He said that they would comment on submissions made at the public hearings. He noted that the Committee had visited two far-distant areas, and there was also a national stakeholder public hearing process in Parliament, in the previous week. The Committee would need to consider the submissions made. He urged Members not to forget the lessons learned from the public hearings, which displayed the difficult conditions under which so many people were living. He noted that the public hearings were involved and extensive, and a number of serious considerations were raised.

Land Restitution Amendment Bill [B35-2013]: Responses to public submissions by Minister of Rural Development and Land Reform and Commission for Restitution of Land Rights
Mr Gugile Nkwinti, Minister of Rural Development and Land Reform, said that the Ministry and Department had taken a systematic approach to the whole issue of land reform, and the issues raised would be covered not only in this Bill but in a number of other pieces of legislation that had been or were still in the course of being prepared. Several land reform policies had been adopted.

The Chairperson noted that the Property Valuation Bill had been tabled and presented to the Committee in the previous week.

Mr Thami Mdontswa, Deputy Land Claims Commissioner, Commission on Restitution of Land Rights, outlined the public consultation process undertaken by DRDLR, in November 2013 and January 2014 (see slide 3 for details) The DRDLR also had observed the catastrophic consequences of colonialism and apartheid, which continued to challenge the democratic government. The DRDLR also undertook it own consultation. In the provincial workshops, it had consulted with a number of stakeholders, including 1 296 restitution claimants, and it had been found that many were left out of the restitution process. 70 written comments were received by the DRDLR. A Regulatory Impact Assessment (RIA) was also conducted, which concluded that only 27.2% of those dispossessed had benefited from the land restitution process.

Slides 6 to 9 recorded the work that the Department was doing to reverse the legacy, but he did not present them and asked Members to study them for themselves. These slides summarised the four pillars guiding the process, the institutions proposed to support them, and details of the agrarian transformation system.

Specifically for land restitution, he noted that government sought to re-open lodgement of claims and provide exceptions to the original cut-off date of 1998 for lodgement of claims, as was provided in the Land Restitution Act (the Act). Other interventions designed to improve the process, over and above the restructuring of the CRLR in 2011, would address planning and administration processes, standardisation of processes, partnerships with research institutions, training and skilling, new electronic systems for lodgement and processing of claims, and support to the CRLR by the NARYSEC youth programme.

Mr Mdontswa took the Committee through a summary of the main submissions and the DRDLR responses.

The first concern was that the Commission lacked the capacity to implement the new planned restitution, that it would likely take 10 to 20 years to complete the finalisation of existing claims, and this could rise to 30 to 40 years if new claims were included. The DRDLR responded that it had a two-pronged approach. For those claims lodged prior to 1998, work would continue, and as the new claims were opened, additional capacity would be created in phases. 304 posts had been created, many of which had already been advertised. NARYSEC would assist in communication, collection of oral history, and management of the claim lodgement process. The capacity for processing claims in the CRLR was being reviewed and the required staff would be appointed. Partnerships with research institutions and universities had been entered into, since the research of claims required considerable time and effort.

The second comment was that there was no budget to settle claims, given the past experience, and it was expected that the situation would worsen in future, particularly in view of slow economic growth in the country. DRDLR responded that National Treasury (NT) had been consulted prior to referral of the Bill to Parliament, and was in support of the Bill. Funding for the restitution programme had been allocated by Parliament. The land reform programme (including land restitution) was one of the five priorities of government, and was aimed at building a united country and resolving historical injustices, and these indicators were also amongst the six goals of the National Development Plan (NDP). For this reason funding would be made available.

The third concern related to competing and overlapping claims, including claims on land already restored to those lodging prior to 1998. DRDLR noted that new claims would be lodged through an electronic system, which would require a full description of land claimed. Where this was not available, the DRDLR would assist the claimant to get GPS coordinates and property descriptions. Once the information was entered the new computerised processes would be able to determine whether there was one than one claim over one property. The Act already provided for research on claims, and disputes on competing or overlapping claims must be resolved with the assistance of District Land Committees, which would perform many functions, including mediation. Final recourse could be had to the Land Claims Court (LCC). He emphasised again the importance of research into claims.

The fourth concern was that there would be uncertainty created in the land market by re-opening of the process, and this was also linked to comments on the duration of the re-opening process. One suggestion was that the lodgement period should be reduced to between six months and two years. DRDLR pointed out that the Constitution provided for the right to restitution, called for healing of divisions of the past, and establishment of a society based on democratic values, social justice and fundamental human rights”. This was repeated in the NDP’s goals for 2030. In light of this Constitutional imperative, DRDLR thought that any uncertainty suffered by the market was a secondary consideration. Furthermore, the Constitution also required the payment of just and equitable compensation for land that was to be resettled, so it must be remembered that investments made on any land by the current owner would be compensated, if the claims were valid and the land was restored.

The fifth concern related to the period. Originally, a ten-year period for reopening of claims was proposed, because it was recognised that significant processes to obtain correct details, visit properties and assist claimants would require a longer time. In the Cabinet process, this was reduced to five years. Some commentators had suggested no cut-off period, others suggested shorter periods, but Mr Mdontswa noted again that sufficient time to meet requirements to sustain the claim must be allowed. DRDLR was expecting to receive numerous claims. The RIA had not considered the likely numbers of claims that would be lodged, but thought around 270 000 valid claims were likely.

The next concern was that reopening the lodgement would pose the risk of losing gains made in the settlements already effected. Mr Mdontswa, however, cited the case of District Six, where 60 000 people were removed but only 2 500 claims were lodged. This suggested that thousands of victims of forced removals were left out of the process, possibly because of poor verification and communication systems. It was likely, for this area, that no more land would require to be resettled, but that more beneficiaries may be recognised.

Another concern was the motive and timing for the Bill. Some suggested that it was motivated by malice and politics, or that it was proposed to address land distribution failures. One argument was put up that its introduction shortly before the elections was an election ploy. However it must be noted that this Bill was merely a culmination of work that the DRDLR had been engaged upon since 2009, as part of the alignment of land reform policies to the mandate of the DRDLR. 2013, the year in which it was initially intended to pass the Bill, was the centenary of the Native Land Act. All programmes of government had to align their work to the NDP, with a three-phase approach to implementation, as determined by the Presidency. Critical steps were needed in 2013 to unlock implementation. The 2014/19 planning would constitute the first five-year planning cycle, with the following five-year phases used to implement. The extension of the date for lodgment of claims fell within phase 1. There had been delays in introducing the Bill because stakeholders in the national reference group required, and were given, sufficient time to consult their constituencies.

Mr Mdontswa then moved on to the comment that this Bill was ethnically selective, that the Khoi and San were not accommodated, and would be left out again from the process. DRDLR explained, however, that if the Khoi and San lost land before the Native Land Act was passed in June 1913, the Act and Bill would not cover their position, but that the policy on exceptions could provide redress to the descendants of these groups, as well as recognising their heritage sites and historical land marks.

Many comments expressed concerns with the position of the Communal Property Associations (CPAs), conflicts with traditional structures and conflicts between beneficiaries. DRDLR noted that institutional governance support, and accountability reform over CPAs would be put in place, to better align governance and administration, through amendments to the Communal Property Association Act. He illustrated the “wagon wheel” model of four tiers of governance (see attached presentation for details) and said he could, if necessary, later explain this accountability model.

During the public hearings there were also allegations and perceptions that this Bill was pursuing an intention to transfer land to the traditional councils, which meant that traditional leaders would benefit. Several people argued that these traditional leaders abused their powers and used community assets, including land, for their personal benefit. DRDLR noted that the institution of traditional leadership was recognised in the Constitution, in part because colonialism and apartheid had tried to destroy it. The Department of Cooperative Governance and Traditional Affairs (COGTA) was presently processing legislation that recognised the traditional councils. Arguments about the institution being backward reflected a colonial viewpoint. He added that sections 35(3) and 42D(3) of the Act empowered the Court and Minister to award land, and allowed for conditions to be imposed to ensure that all members of the dispossessed community had access to the land on a non-discriminatory basis, with full accountability of the person holding the land. This was a control measure. There was no ground to deny communities who chose to transfer title to their land to a Traditional Council, where there was compliance with these sections.

Another submission alleged that the Bill was “rushed through” the process. However, he summarised again the consultation process and the fact of both national and provincial consultation  by the DRDLR, as well as the public hearings in Parliament. After Cabinet had approved the Bill, 74 workshops were held nationwide.

There had been a proposal put forward that, instead of pursuing this Bill, redress could be given to those who had not lodged before 1998, through section 6(2)(b) of the Act, which allowed the Commission to make recommendations to the Minister for alternative relief for those who did not qualify for the restitution of rights in land. However, Mr Mdontswa pointed out that the challenge was that this applied only to “claimants” and they were defined as those who had lodged claims in time, so it would not help those who did not.

The argument was put forward that the CRLR must be a fully independent body with sufficient budget; some suggested that it should be in a similar position to South African Revenue Services. Some argued that it should be privatised and run by an independent audit firm. He pointed out, however, that the CRLR was already set up as a national public entity, through the Public Finance Management Act (PFMA) and was funded by money appropriated by Parliament. It must be accountable to Parliament and the DRDLR.

Some of the submissions dealt with land already settled, and suggested that the Restitution Act must be amended to provide for no restoration of already-claimed land where settlement had already been reached, or the landowner had successfully defended the claim. Mr Mdontswa pointed out that the point had already been argued in court cases. In the KSD Municipality case, the Constitutional Court held that restoration of rights in land took primacy over all other forms of restitution, and there would have to be very special reasons if a court were to order that land not be restored. Where research revealed that a claimant was entitled to restoration, that it was feasible and in the public interest, then restoration must take place. That would include instances where there might need to be a review of the prior land settlement, which could include land having been awarded erroneously to the wrong claimants. In such a case, the correct beneficiaries would ultimately get the land, but the prior claimant would be entitled to compensation and their claims weighed up. Jurisprudence had been developed by the Courts.

There had been suggestions, particularly from those who had lodged claims prior to 1998, which were not yet resolved, that these claims must be prioritised to ensure that they did not slip through the cracks. DRDLR understood the concerns. Section 6(2)(d) of the Act actually provided already for prioritisation in circumstances where the claim affected a number of persons, involved substantial losses, or were lodged by persons with pressing needs, with these being treated as distinct categories. DRDLR now proposed that these be amplified so that a new category would be added, which would read “ priority to claims lodged on or before 31 December 1998, thereafter those affecting ..” (the three already-listed categories).

Some submissions addressed the position of judges in the Land Claims Court (LCC). At the moment it was stated that in order to be appointed to this Court, they must be judges of the High Court. Some commentators said that this would narrow the pool of expertise available. There were also concerns about the gender balance of the judges. Mr Mdontswa explained that at the moment, there was actually only one permanent judge on the LCC, the Acting Judge-President of that Court, since the other full-time appointee was serving an international appointment. All other judges were Acting Judges of the LCC. However, the Act already noted that if the Court was considering evidence on land claims, an assessor – a person experienced in the relevant points – must be present, and so the Court would always be assisted as needed. For instance, if the court was considering just and equitable compensation, it may seek an assessor experience in valuation. In this way, the status of the judges as equivalent to those in the High Court would be maintained, and supported by additional skills, and in fact the quality of judgments coming out the court was likely to improve. DRDLR believed that this was the best solution. In relation to gender, he noted that the NA was currently processing gender legislation, and the Judicial Service Commission also took into account gender balance when making recommendations on appointments, so it was not considered necessary to build this into the Act.

Mr Mdontswa concluded that commentators had also raised other matters that were not directly related to the Bill, and their comments would be considered when there was a review of the operational processes of the CRLR. There were allegations of corruption and incapacity amongst the Commission’s staff and they would be investigated and the necessary corrective action taken. Some individuals and communities enquired about their claims, and CRLR had taken details, and had reverted already to the majority of them. It would provide a separate written response to the Committee, later on, how these matters had been handled.

Mr Mdontswa agreed with the Chairperson that even thought the CRLR worked with these issues on the ground, the public hearings had indeed brought home the plight of those dispossessed of their land by colonialism and apartheid, making it even more determined to reverse those legacies.

The Chairperson noted the comment about public submissions that had not related to the Bill itself, and said that it was necessary for the DRDLR to ensure that the information presented was captured for later attention. He cited the example that people had mentioned the practice of “masakhane” which affected their entire community, and other specific conditions. Many people did not understand the concept of separation of powers, and it was important to get back to them and explain what Parliament and the Department could do. Another issue causing great distress was that many had been refused permission to visit and honour ancestral graves, a very emotive issue. This must be covered also in the Committee’s Report on the public hearings and Bill.

Mr Mdontswa explained that the “masakhane” was apparently introduced prior to 1994 as part of the mobilisation process, and had to do with non-payment for services prior to that date, but payment after 1994. Other areas of the country referred to this under a different name.

Mr K Mileham (DA) referred to slide 11 on funding, and asked if an economic impact assessment had been conducted, and, if so, requested a copy. He asked if NT had actually given a commitment to fund, since the Minister of Finance had recently said that there would be no additional funding made available. Given the projections of R180 billion required, it was estimated that it could take eighteen years for the DRDLR to settle land claims if it directed every cent of its allocation to this one aim only.

Mr Mdontswa said that a question was specifically put to the Director General of National Treasury, who had responded that all programmes of government were funded, especially where there was legislation requiring something to be done. That was, therefore, a commitment. Whilst DRDLR could not at this stage say whether all amounts mentioned in the RIA would be made available, nor over what period, it was confident that there would be fiscal provisions for settlement of land claims. At the end of the day also, he pointed out that Parliament passed the Division of Revenue Act, which “sliced the cake”.

The Minister added that because restitution of land was government policy, it would be funded, and it was now for the House to pass the Bill into law.

Mr Mileham was in full agreement on the importance of land restitution. He felt that there was, however, too little emphasis on the impact of market uncertainty, which was linked directly to poverty. The banana farmers in KwaZulu Natal, uncertain whether their land would be claimed, and seeing the market values reduce, had decided to move, with their capital, to Mozambique, and that had led to substantial loss of jobs amongst their former workers. He was not suggesting that the window period for lodgement be reduced, but he did think that more attention had to be paid to the market issues and a careful balance was needed.

Mr Mdontswa said that it was never the intention to downplay market uncertainty, and this issues had been tackled during discussions with stakeholders. Market uncertainty placed limitations on owners’ rights, and he fully agreed that there were expectations that claims would be settled because they were lodged. The DRDLR had also consulted with the Banking Association of South Africa, because it was alleged that as soon as claims were lodged, the banks would refuse to recognise that land as collateral for other loans. He could not understand why, because the regulations did not allow for this, and it ignored that just and equitable compensation would in any event be paid. The question of farmers choosing to move to neighbouring countries had been raised with AgriSA, particularly since it was not understood why they would choose to invest in the agricultural market in another country where they were in any event not permitted to own farming land. The Minister had recognised that the movement of expertise within the region was not necessarily negative. If the country did not address past injustices, the spirit of the people who fought for the land would not rest, and prosperity would not be achieved.

The Minister added that it must also be recognised that many farmers were moving out of South Africa because of other social challenges, not merely because of market impact or uncertainty on land, and he cautioned that whilst market impact was important, it must not be overstated. The impact that other neighbouring countries had on South Africa, directly and indirectly, must also be considered. There were other mechanisms to ensure stability too.
Mr M Swathe (DA) also spoke to the point of market uncertainty, saying that sometimes the current owners would fail to maintain, or actually abandon the land, so that by the time it was restored to the rightful claimants, it had deteriorated to the point where it may be unsuitable. He thought that greater market uncertainty might encourage that, and if more unproductive land would then be handed over.

Mr Mdontswa said that this was a concern. The Medium Term Strategic Framework recognised the importance of food security, which could be seriously impacted upon by these kinds of delays and incidents. There were models that would prevent the production declining during the investigation and verification, and gazetting now related to claims settled, to try to avoid disturbing incumbent farmers’ production, and to try to avoid excessive delays.

Mr Mileham noted the comment that all information must be provided at the time of lodgment  of the claim. He said that many claims were submitted but verification was done after lodgement, and he thought that the window period surely had more to do with the research and verification than with the lodgement alone, so he was not quite satisfied with the response.

Mr Mdontswa said that the reason why information was required was to get exact details of what was being claimed. He cited the example of claim forms lodged during the last process that only gave the name of the claimant, but nothing else, and in one such case, in Eastern Cape, the CRLR had refused the claim as specious, only for the Court later to rule that the CRLR should assist the claimant in producing the information. Even those lodging prior to 1998 had felt, because of the short period allowed (and it was extended three times) that they may not have received enough assistance. In another case, a claimant had thought that a portion referred to a whole farm, and was disappointed. Allowing sufficient time for full inspections would help people to understand what they were claiming, and identify the correct land. That was quite apart from the later verification process.

Mr Mileham referred to slide 15, with the example of District Six, but noted that there may be a mismatch of statistics. Claims were lodged in the names of households, and surely it was not 60 000 households who were potential claimants.

Mr Mdontswa said that there was a need to recognise that many figures may be anecdotal or not verified; for instance for a long time it was believed that 3.5 million people were forcibly removed, but this information was later tracked to the Settlers’ Peoples Project, covering a specific time period, and it did not take into account earlier dispossession or homeland consolidation, which did qualify under land restitution. One submission had noted that 101 families were already removed from District Six in 1901, and they were not included in the 60 000 figure, which was counted over a very specific timeframe.

Mr Mileham referred to slide 18, in connection with Khoi and San, and asked how it would be possible to make policy on exceptions for situations not covered in the legislation. Policy, in his view, should not alter legislation and he thought there was a need for alternative legislation.

Mr Mdontswa said that the qualification for the exemptions would set out exactly what would happen. The policy was a statement of intention. If it was seen that any legislative amendments were then required, this would be done. For example, if the exceptions were purely restitution-type, relying on section 25(7) of the Constitution to give redress, then that section may need to be amended. However, if not, they may require amendments to other pieces of legislation. The development of the qualifications would inform the way forward.

Mr Mileham thought that the comment that opposition to the institution of traditional leadership reflected a colonialist viewpoint was too simplistic, for there had been many at the public hearings who actively opposed or criticised this institution, whilst others were in favour of it. The split in opinion in the modern South African society on the role of traditional leadership and traditional councils had to be recognised.

Mr Swathe agreed with Mr Mileham, and said that the response by DRDLR did not reflect accurately what people on the ground were saying. Many people in both KwaZulu Natal and North West said that they had claimed and received land, only to have it seized by traditional leaders, even though they did not fall under those leaders, and women were particularly affected. He agreed that there was a perception that the traditional leaders’ rights were being preferred over those of individuals. He asked the Committee to reflect seriously on this point. He also took issue with the suggestion that any opposition to traditional leadership was merely colonialist thinking, pointing out that people may think outside the box, and that the advent of the Constitution had done much to make people think again about the traditional forms of governance.

The Chairperson asked for clarity on what Mr Swathe was saying.

Mr Swathe explained that before the white people came to South Africa there was no constitution, but now there was one, and people were more aware of their rights and opposed to them being trampled upon. It was wrong, therefore, to suggest that it was only the colonials who did not trust the institution of traditional leadership.

The Chairperson said that of course there was a different system of government before the white people came; with more reliance on self-governance of communities and ways of resolving disputes, and so people were not “lost” prior to the arrival of the white settlers. This must be put in proper perspective.

The Minister agreed with the Chairperson that sometimes there was under-estimation of the impact of institutions created and imposed on people, such as trusts, CPAs and other forms. Of course, there were forms of government prior to the white settlers, and rules of conduct governed human relations.

Mr Swathe also made the point that an issue not covered by the DRDLR was that many people complained that although they may have been given land, they still did not hold title deeds.

The Minister said that part of what was currently being discussed by the unions, business chambers and farming sector was a policy document “Strengthening the Relative Rights of those who work the Land” , and amendments to the Extension of Security of Tenure Act would be presented. One of the reasons for delays in the past was that DRDLR was cautious to consult extensively to try to reach agreement on contentious issues. It was hoping that the Bill and policy together should alleviate the problems.

Mr Mileham noted that slide 26 covered the position of those “who do not qualify for the restitution of rights in land”. This was defined in the Act and the right to tenure would be restored. If the CRLR could not restore the land, then alternative compensation would surely apply. He thought that the new clause should clarify that it referred to cases where there was inability to restore the right to the land title.
Mr Mdontswa said that this was discussed extensively, including with bodies representing a number of communities. CRLR fully admitted that at one stage it had informed those who were dispossessed not to lodge claims, pending court processes, and it had considered many options for providing redress through betterment. He reiterated that the current wording of section 6(2)(b) required a claim to be lodged, but it did speak of redress for those not qualifying. A legal opinion had been obtained, with which DRDLR agreed, that this applied to those lodging prior to 1998.

The Minister agreed with Mr Mileham’s comment and said that this was exactly why some cases were being treated as a separate policy, because they may not be settled via this Bill. At the moment the current wording envisaged restoration of the land. He also referred to the Chairperson’s earlier concerns on access to historical sites. He explained that the State had, in Eastern Cape, in recognition of the wide-scale effect of dispossession during the nine wars, purchased land, brought descendants of the Khoi and San and Dutch settlers on site and specifically attended to memorials. Historical landmarks were all over South Africa, including the sensitive issue of graves, and heritage sites for different groupings, and it was the intention to restore dignity to all those who lost land. The suggestion had been made by Khoi and San people that the site on which Cape Town’s Castle was erected should be a heritage / healing centre. Some pieces of land could be restored as land; others might not. There was the option of financial compensation or alternative land.

Mr Mileham said that slide 27 set out the proposals to have an “independent” CRLR. He thought that the submissions were calling for a Chapter 9 institution. He felt that DRDLR’s response focused on the current situation but did not actually state why a Chapter 9 type institution could not be set up.

Mr Mdontswa explained that the institution making that proposal during an oral representation was specifically asked who should fund an independent CRLR. At the moment, CRLR was funded by money appropriated by Parliament and it had to account to Parliament. He said that Chapter 9 institutions got their budget through the departmental votes, and although they had CEOs as accounting authorities, they were exercising powers delegated by the Directors General (sic). As long as government was funding the activities of the CRLR it could not be independent and not have to account to anyone.

The Minister added that the current Chapter 9 institutions were essentially accountability institutions, and it could be difficult to add one that differed. He pointed out, in addition, that the CRLR fulfilled a specific project that was supposed to end at some point, that settling land claims was an executive function for which the Executive must take responsibility.

Mr Swathe wanted to speak to capacity of the CRLR, noted the creation of the 304 posts but asked if they would be allocated per district or per municipality.

Mr S Ntapane (UDM) also touched on capacity. He asked what the “agreement” was, and with whom, on skilling and getting capacity, and how far the CRLR was in the process of getting extra capacity.

Mr Mdontswa said that the intention was that in phase 1, there would be 12 offices. This was determined by the logistics of the new electronic systems being set up. There was a process to roll out other infrastructure to the DRDLR, and as the other offices were rolled out they would be capacitated, with models according to need for each office. There would also be mobile units with staff allocated to them. At the moment, DRDLR had not advertised for all 304 posts, but had advertised for those where infrastructure was in place. In phase 2 there would be representation set up in all districts. There had been requests to roll out lodgement facilities to offices of the municipalities and this was being considered, with investigations whether they could house the electronic systems that would be used to scan all documents lodged, to prevent the losses and misfiling that had happened in the past. In future, a person lodging would immediately be given a reference number and that would require a particular IT set-up. He confirmed that there would, over time, be rollout to all districts, and mobile offices would also operate.

Mr Swathe said that the presentation did not touch on the complaints of those who said they had lodged, yet whose claims could not be found.

Mr Mdontswa said that it was correct that some claims were “lost”, where a person might be able to produce correspondence yet no file was found. He ascribed this to circumstances such as an official carrying a file with him when he was, perhaps, involved in an accident. He also noted that claims were still being referred to the CRLR which had been lodged in other government offices, and the Court had ruled that provided they were lodged before the cut-off date, they should be investigated. He reiterated that the electronic system scanning everything should eliminate these problems in the new process.

Mr Ntapane understood that manual processes had been used in the past and he asked whether there was a way to identify, when new claims were opened, if similar claims had previously been lodged under manual systems.

Mr Ntapane requested that all comments conveyed to the Committee should also be summarised for the DRDLR, and all the concerns thus dealt with in a similar way.

Ms N November (ANC) said that there was a need to complete the analysis of the DRLDLR into what would be required in a short space of time. She commented that many of the issues were raised by municipalities, or concerned them, and COGTA must also act speedily.

Ms November commented on the communication gaps that worried her, in most or all of the provinces, with some saying that the fact of public hearings was not very clearly conveyed, and did not reach people in all of the districts. She pleaded that DRDLR and others must ensure that every district received the messages clearly, particularly when hearings were to be conducted.

Ms Nomfundo Gobodo, Chief Land Claims Commissioner, acknowledged that there had been shortcomings in communication, but CRLR was taking measures to ensure continuous communication with current and potential claimants.

Ms November referred to the NARYSEC involvement, and the transfer of skills. Firstly, she commented that in Northern Cape, most of the youth tended to be drawn from one area, with perhaps insufficient attention being paid to other areas of this vast province, and secondly she said that she would like to see matters moving faster, as she felt it was taking far too long to capacitate people.

The Minister said that at the moment young people came out of the Further Education and Training Colleges (FET) and were currently concentrating on construction, where they had displayed amazing skills and constructed 2 020 houses. DRDLR was hoping that over the next five to ten years this would be standard for rural development projects, and NARYSEC projects were now also extending to agricultural and industry sectors. The Minister of Higher Education and Training was assisting with ensuring that revitalisation of training institutions would take the project even further.

The Chairperson hoped that the DRDLR and CRLR would take very seriously the complaints and criticisms about the staff, particularly the allegations of corruption, and ensure that these were promptly investigated and that stern action was taken, as it would be very serious if land that should be restored was being diverted to others. He agreed fully with other Members on the need to speed up legislative reform and capacitate the Commission and Department. The traditional leadership and CPA matters needed to be clarified and their roles clarified. Mr Mileham had pointed out correctly that there were submissions expressing views for and against traditional leadership, and clear legislation would help in defining roles and setting expectations. The fact was that traditional leadership was here to stay. Land had been removed from traditional leaders as custodians of the land, so their position could not be discounted, and history could not be re-written. There was, however, a need to find a way of shaping the structures to avoid dividing the communities.

The Chairperson commented that the comments on an “independent” Commission must be taken in context, and he agreed that the question had been asked as to who would fund it. Clearly, the State must fund, and Parliament could not divest itself of the responsibilities that flowed from democracy.

The Chairperson concluded that this had been a useful discussion, thanked those who had participated and summarised that this Committee must now move speedily to conclude its task. He said that the President had announced this initiative last February, an ad hoc Committee had been appointed, full consultation ensued, and he did not agree that the process was unduly “rushed” as suggested during the public hearings, for it had been ongoing for some time.

He summarised that the Committee would meet for the following three days to ensure that the Bill was completed, as it would be irresponsible for the Fourth Parliament to rise without having concluded the process, in view of all that had already been done.

The meeting was adjourned.


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