Restitution of Land Rights Amendment Bill; NEMA Laws Third Amendment Bill; Waste Amendment Bill negotiating mandates; Property Valuations Bill: Department Rural Development & Land Reform briefing

NCOP Land Reform, Environment, Mineral Resources and Energy

17 March 2014
Chairperson: Ms A Qikani (ANC, Eastern Cape)
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Meeting Summary

The Committee considered negotiating mandates from the provinces on the Restitution of Land Rights Amendment Bill. The Eastern Cape, Gauteng, Limpopo, Mpumalanga and North West voted in favour of the Bill. Proposals for amendments made by the Free State, Kwazulu-Natal and Western Cape were rejected.

Provincial negotiating mandates on the National Environmental Management Laws Third Amendment Bill were also considered. The Eastern Cape, Free State, Gauteng, Kwazulu-Natal, Mpumalanga and North West voted in favour of the Bill. Proposed amendments by Limpopo and Western Cape were rejected.

Negotiating mandates were also considered on the National Environmental Management Waste Amendment Bill. The Eastern Cape, Free State, Gauteng, Kwazulu-Natal, Mpumalanga and North West voted in favour of the Bill. Proposed amendments by Kwazulu-Natal and Limpopo were rejected/ The Western Cape indicated that its representative was not mandated to vote in favour of the Bill in its current form.

The Committee was also briefed by the Department of Rural Development and Land Reform on the Property Valuation Bill. The presentation looked at the background to the legislative process, and highlighted that access to, and proper use of land and property as resources, were essential to the social and economic well-being of the South African society. The market mechanism had to date been the primary means for getting access to these resources, and it was founded on “fair market value”. However, over the last 18 years, the State had been hindered, when seeking to redistribute land, by the slow pace of land reform and escalating land prices, both of which were due to the use of the fair market value. The Bill now proposed that, where land was to be used for redistribution, the values should be assessed by way of a different formula that took a number of factors into account, and for this purpose a new body, the Office of the Valuer-General (OVG) was to be set up. The briefing then outlined the structure of the Bill from chapters one to four, stakeholders consulted and financial implications of the Bill on government.

Members raised questions around the slow pace of land and escalation of prices, asked for clarity on certain definitions and budgets and the purpose and functioning of the OVG. There were specific concerns about the capacity and budget of the Office and timeframes for implementation. Other Members asked why the Bill was tagged as a section 75 instead of a section 76 bill, raising concerns that the Bill could be contradicting the Restitution of Land Rights Amendment Bill, which was a section 76 bill. In particular, one Member raised concerns as to why the House of Traditional Leaders was apparently excluded from the list of stakeholders, pointing out that a lot of land was owned by traditional leaders. There was not enough time for the Department to respond to these questions and the Chairperson requested that written responses be sent to Members.

As no quorum was established, the Committee’s Legacy Report and outstanding minutes could not be adopted and stood over to a later meeting.

Finally, the Committee noted that the Integrated Coastal Management Bill had been sent to mediation because the Portfolio Committee on Water and Environmental Affairs did not agree with the Select Committee’s amendments to the Bill. Attempts were ongoing to set a date for the mediation process.
 

Meeting report

Chairperson’s opening remarks
The Chairperson noted the apologies of the Minister of Rural Development and Land Reform. She welcomed special delegates from the legislatures of the Eastern Cape and Kwazulu-Natal, who introduced themselves to the Committee.

Restitution of Land Rights Amendment Bill: Presentation of Negotiating Mandates
Eastern Cape Provincial Legislature
Ms A Ponco, Chairperson of the Agricultural and Rural Development Committee in the Easter Cape province, stated that her province had voted in favour of the Bill.

Mr D Worth (DA, Free State) asked for a separate report on the public hearings held by the province including where the hearings were held, how many people were there, and what issues were raised.

Ms B Mabe (ANC, Gauteng) asked if this was a requirement, as it was never raised as an issue when the Committee discussed Bills before.  

The Chairperson said she was shocked by this request, as it was not the first time the Committee was dealing with negotiating mandates.

Ms Mabe thought the matter should not be taken lightly, if this was not in fact a requirement. Mr Worth had always supported Bills without this information, and she therefore questioned why he was asking for that information now.

A Parliamentary Procedural Advisor explained that if information on public participation was part of a standard procedure according to which the Committee considered Bills, a precedent would be set. But if the Committee did not do this, there would be no need for the information. Constitutionally, looking at the role of the NCOP in facilitating public participation, it could be argued that the NCOP could request provinces to submit documents on their public hearings.   

A Parliamentary Legal Advisor added that the Mandated Procedure of Provinces Act outlined the requirements for negotiating mandates.   

Mr Worth explained that his interest in the public hearings was expressed because this particular Bill had generated a lot of public interest. He was always interested to hear how many people were present, where the meeting was held, what proposals were suggested and other relevant information.

Ms Mabe said it was Mr Worth’s responsibility to be in those meetings, as he was obviously suggesting public hearings were not held. This showed he did not attend a very important meeting in his province, even though she suspected that leave was granted for him to attend the hearings. 

The Chairperson said all Members were to supposed to and participate in these public hearings or meetings.

Free State Provincial Legislature
Mr Worth stated that the Free State province supported the Bill although there was a proposal for amendment to section 22(4), to allow for the President to appoint also the retired judges with knowledge, experience and expertise in land matters.

An official from the Department of Rural Development and Land Reform (DRDLR or the Department) said that the President was entitled to appoint retired judges by section 84(2)(f) of the Constitution but this was in relation to special Commissions set up by the President. The Land Claims Court was like any other court, so the same provisions relating to the appointment and retirement of judges in other courts had to apply to this court also. The Department did not support the proposed amendment.

Mr Worth asked that this be submitted in writing to the Free State Legislature.

The Parliamentary Legal Advisor saw no reason why it was suggested that a retired judge would be more qualified than an existing High Court judge. The Bill sought to follow the normal procedure by which judges were appointed to the High Court.

Mr Alan Small, Senior State Law Advisor, Office of the Chief State Law Advisor, said the Constitution allowed for the President to appoint any judge or fit and proper person.

The Chairperson supported the Department’s view and indicated that she was not in favour of the proposed amendments by the Free State.

Mr M Makhubela (COPE, Limpopo) also indicated that his province rejected that proposed amendment by the Free State.

Mr G Mokgoro (ANC, Northern Cape) also indicated that his province would not support the Free State’s proposed amendments.

Ms Mabe, for Gauteng, rejected the proposed amendments by the Free State.  

The Committee Secretary asked that Members used the correct terms to avoid any ambiguity. Members were to indicate that they accepted the amendments or rejected the amendments instead of saying they concurred with the Chairperson. 

Gauteng Provincial Legislature  
Ms Mabe, speaking to the mandate of the Gauteng Provincial Legislature, noted there were concerns whether there were sufficient resources to deal with the task of restitution of land, whether there was a contingency plan to provide against defrauding of the state, and had posed some questions what would happen to claimants who were dispossessed before June 1913. The Gauteng legislature, however, voted in favour of the Bill.

The Chairperson noted the Department would write to the Gauteng Provincial Legislature on these concerns.

The Committee accepted the negotiating mandate.

Kwazulu-Natal Provincial Legislature
A special delegate from the KZN provincial legislature stated that the Kwazulu-Natal Provincial Legislature supported the Bill. This legislature, however, also had a number of amendments to propose

The first proposal was on clause 1, where it was proposed to omit “[31 December 1998] 30 June 2019” and to substitute it with “31 December 1998] 30 June 2015”.

Secondly, this province suggested the insertion of a new clause 2(5), reading: “a claim submitted after 31 December 1998 but before the date specified in section 2(1)(e) will be considered invalid, unless the claimant can show good cause as to why the claim was not lodged during the window period ending 31 December 1998”.

The Department’s official responded, in regard to the proposals on the dates, that the Department had initially asked for a period of one year but it was explained that a period of five years was required to accommodate the stipulations made in the legislation, that were required of a land claimant. The Department therefore wished to propose that the date be kept as 30 June 2019. On the second part of the proposal, the power was vested with Parliament to decide whether to amend the final date for opening or not.

In regard to the proposal for clause 2(5), the Department did not support the proposal as it simply repeated what was already in clause 2 of the Bill.

The Parliamentary Legal Advisor confirmed that it was a policy issue, and therefore up to this Committee and Parliament to decide whether to change  the date, but consideration must be given to whether  this would give sufficient time for the whole process to take place or sufficient time for a claimant to lodge a claim. In regard to the proposal to amend the window period, it was pointed out that this could easily be amended by the new Parliament.  The proposal for an insertion to 2(5) was also a matter of policy.

Mr Small agreed that these were policy related issues.

The representatives for Eastern Cape, Limpopo, Northern Cape and Gauteng rejected the proposed amendments by the KZN Province.

The Free State indicated that it was in favour of the proposed amendments by the KZN Province.

The KZN delegate moved onto the next proposed amendment by the province, which was to insert a new clause 2A, amending clause 4(3), and reading: “on recommendation from a multi-party committee of Parliament and approved by the National Assembly and the NCOP”

The Department said that if the commissioners were appointed by Parliament then the Minister would have no role to play in the regulation of commissioners. For this reason, it could not support the proposed amendments.

Mr Small indicated the provision was covered already in the Bill, where the Minister was given the power to appoint commissioners.

The Parliamentary Legal Advisor said this was a policy consideration, and it was up to Parliament to decide if it wanted to get involved in appointing commissioners, in which case it must also consider whether this was even an appropriate function for Parliament to assume.

The Eastern Cape, Limpopo, Gauteng, North West and Free State rejected the proposed amendment by the KZN Province.

Mr Worth requested that the Department should explain its reasoning in writing to the KZN Provincial Legislature.

The KZN delegate noted that the next proposal was for an amendment to clause 6(1)(CA) by inserting “appoint, through a competitive bidding process, an independent service provider, registered with the Independent Regulatory Board for Auditors to…”.

The Department said this clause of the Act provided for general functions of the Land Claims Commission (the Commission). One of those was to investigate the merits of claims. If mediation failed the matter would be sent to the Land Claims Court. Otherwise, the claim was responded to the Minister for the purposes of settlement. On this basis the Department did not support the proposed KZN amendment.
The Parliamentary Legal Advisors said that the involvement of other outsiders would take away the function of the Commission, so she did not know if the amendment served any purpose.

Mr Small added this was a policy decision, and agreed with the Department’s assessment of the position.

The Eastern Cape, Limpopo, the Northern Cape, Gauteng and the Free State rejected the proposed amendments by the KZN Province.

Mr Worth again requested that the Department write to the KZN Provincial Legislature explaining why the proposed amendment was rejected.

The KZN delegate said the next proposal was on clause 10(7), where it was suggested that new wording be inserted, to read: “prior to accepting any claim, the Commission shall ensure that the land claims process is properly communicated through national and regional media, and through provincial and regional workshops”.

The Department said the Commission would embark on a comprehensive communications campaign.  The campaign had already been developed by the Department in consultation with the Government Information and Communication Service (GCIS) and was outlined in a memorandum which would be sent to the media to solicit claims. The Department was of the view that there was no need for, and therefore did not support this proposed insertion.

Mr Small agreed with the Department’s explanation.

The Parliamentary Legal Advisor did not know if communication campaigns could be legislated for.

Mr Worth said he heard these points, but asked whether there were deadlines involved, and if they would be made known to future claimants.  

The Department responded that the communication campaign informed citizens of the right to restitution as contained in the Constitution, and the process involved, and what the deadline would be. It also set out where a claimant should lodge a claim and what information to bring. This communication campaign would be rolled out as soon as the Bill was passed.

Mr Worth heard this, noting it was an important part of the land restitution process and asked that this explanation should be submitted to the KZN Provincial Legislature in writing.

The Eastern Cape, Limpopo, Northern Cape, Gauteng and Free State rejected the proposed amendment by the KZN province.

The KZN delegate stated the next proposed amendment was to clause 3, where it was suggested that the words “within 6 months of the date of commencement of this Act” should be included.
 
The Department explained that by 6 months, the successful claims were already gazetted, as this would already happen two weeks after the claim was deemed successful. For this reason the Department rejected the proposed amendment.

Mr Small accepted the explanation by the Department.

The Parliamentary Law Advisor noted the proposed amendment was not workable, as some claims may be made after six months.

The Eastern Cape, Limpopo, Northern Cape, Gauteng and Free State rejected the proposed amendment by the KZN Province.

The KZN delegate said the next amendment was to clause 14(7A) where it was proposed that the following wording be inserted: “the costs associated with referring any matter to the Land Claims Court, whether by the Commission, the claimant or the landowner, shall be borne by the State at the scale of attorney-and-client costs”.

The Department said this proposed clause was not supported as there was already a requirement for the Chief Land Claims Commissioner to arrange legal representation for those parties who could not afford it.

Mr Small agreed with the Department.
 
The Parliamentary Law Advisor said this proposed amendment would be quite onerous on the state but it was already provided for.

The Eastern Cape, Limpopo, Northern Cape, Gauteng rejected the proposed amendments by the KZN Province.

Mr Worth asked whether “normal farmers” who were involved should bear their own costs. He said that his province agreed with this proposed KZN province amendment.

The KZN delegate highlighted the next proposed amendment to clause 11 to omit “[31 December 1998] 30 June 2019” and to replace it with “[31 December 1998] 30 June 2015”.

The Department explained this was similar to the proposed amendment to clause 1, which was not accepted by the Department. A period of five years was required, as explained earlier, so this proposed amendment too was not supported by the Department.

Mr Small agreed with the Department, highlighting that this was more of a policy issue.

The Eastern Cape, Limpopo, Northern Cape, Gauteng and the Free State rejected the proposed amendment by the KZN province.

The next proposed amendment by the KZN province was to clause 12, to omit “[31 December 1998] 30 June 2019” and replace it with “[31 December 1998] 30 June 2015”.

The Department said this too was a consequential amendment which the Department did not support.
The State Law Advisor and Parliamentary Legal Advisor agreed with the Department.

The Eastern Cape, Limpopo, Northern Cape, Gauteng and the Free State rejected the proposed amendment by the KZN province.

The KZN delegate said the next proposed amendment was to insert a new clause 14, amending section 42 of the principal Act. It would read: “Section 42E of the principal Act is hereby amended by the insertion of subsections (5) and (6):
(5) No provision of this Act shall give rise to any power on the part of the State to take into custodianship any land upon which a claim has been made
(6) Where productive agricultural land is subject of a land claim:
(i) and, within 6 months of the claim being gazetted , the landowner is willing to sell the land, restitution of an appropriate right in such land shall be transferred to the claimant/s only if a business plan approved by the Department and adequate funds, equipment, and other resources for ensuring the continued productivity of the land are provided by the Department and/or claimant/s; or
(ii) the landowner is unwilling to sell the land, restitution shall be made:
(a) by transferring to the claimant/s an appropriate right in State-owned land or such land as the State may acquire; or
(b) through financial compensation to the claimant/s”.

The Department said it was not in favour of the proposed amendments because the Minister was empowered to acquire land according to provisions already made in the principal Act.

Mr Small agreed with the Department, noting this was more of a policy issue for which it might not be necessary to legislate.

The Parliamentary Legal Advisor said also that this was a policy decision and the Committee should consider whether it wanted to see conditions imposed in relation to the requirement of a business plan.

The Eastern Cape, Limpopo, the Northern Cape and Gauteng rejected the proposed amendments by the KZN province.

The Free State was in support of the proposed amendments by the KZN Province.

Ms Mabe thought this proposal was made because the land was owned by chiefs. She asked the KZN delegate why she was not motivating this.

The Chairperson said the Department’s explanations would be provided in writing to the KZN Province.

The KZN delegate moved on to the next proposed amendment, which was a new clause 15, to insert a new section 42G, reading:
“(15) the following section is hereby inserted after section 43E of the principal Act:
Financial Arrangement (42F) No provision of this Act shall be of any force or effect unless a budget has been allocated to the Department in terms of the Medium Term Expenditure Framework which is sufficient to settle all claims arising from this Act within 6 years of the date referred to in section 2(1)(e)”.

The Department said this was a government process, which was funded through the fiscus and there was no limit to the right to restitution nor should it be subjected to the availability of funds. This proposed amendment would limit the right to restitution by limiting it to state affordability. The Department therefore did not accept these proposed amendments.

Mr Small noted that such provisions were not usually legislated for, but they were catered for in the Memorandum to the Bill already.

The Parliamentary Legal Advisor was of the opinion that this proposal was very unworkable, especially trying to set a budget before it was known how many claims there would be. It was Parliament’s responsibility to ensure that the Department was held accountable for funds allocated to land restitution.

The Eastern Cape, Limpopo, Northern Cape and Gauteng rejected the proposed amendment by the KZN Province.

Mr Worth said that it was known that there would be a flood of claims, and, with the current rate of funding, it would take years to deal with these claims. Adding administrative costs meant the budget had to be increased. The Free State was in support of the proposed amendment by the KZN Province.

Mr O De Beer (COPE, Western Cape) agreed that the provision of funding should be increased, and indicated that the Western Cape agreed with this proposed amendment by the KZN Province.

Limpopo Provincial Legislature
Mr Makhubela said that the Limpopo Province voted in favour of the Bill with no amendments.

The Committee accepted the negotiating mandate.

Mpumalanga Provincial Legislature
In the absence of a permanent delegate, the Chairperson presented the Mpumalanga Province’s negotiating mandate to the Committee, and said that this Province had voted in favour of the Bill with no proposed amendments.

The Committee accepted the negotiating mandate.

North West Provincial Legislature
In the absence of a permanent delegate, the Chairperson presented the North West Province’s negotiating mandate to the Committee, saying that this Province voted in favour of the Bill, with no amendments.

The Committee accepted the negotiating mandate.

Western Cape Provincial Legislature
Mr De Beer said that the Western Cape Province supported the Bill, with amendments.

The Department said the proposed amendments by the Province were not very clear, and asked which specific sections the Province sought to have amended.

The Parliamentary Legal Advisor did not note any amendments, but rather saw the description as a report on certain concerns by the Western Cape Province.

The NCOP procedural officer said that because the proposed amendments were not in tabulated format, the Committee could not substantially consider them as amendments. 

Mr De Beer answered that the Province would be satisfied if the Committee and Department considered what the Western Cape Province had alluded to.

The Chairperson said this would be done and the Committee agreed and accepted the negotiating mandate as supporting the Bill.

Negotiating Mandates on the National Environmental Management Laws Third Amendment Bill
Eastern Cape Provincial Legislature
The Chairperson stated that the Eastern Cape Province voted in favour of the Bill.

The Committee accepted the negotiating mandate.

Free State Provincial Legislature
Mr Worth stated that the Free State Province voted in favour of the Bill without any amendments.

The Committee accepted the negotiating mandate.

Gauteng Provincial Legislature
Ms Mabe stated that the Gauteng Province voted in favour of the Bill.

The Committee accepted the negotiating mandate.

Kwazulu-Natal Provincial Legislature
The KZN delegate stated the KZN Province supported the Bill.

The Committee accepted the negotiating mandate.

Limpopo Provincial Legislature
Mr Makhubela said the Limpopo Province voted in favour of the Bill with attached considerations.

The Chairperson noted these were not concrete amendments but general concerns, which the Department would take into consideration. The Department was asked to write to the Limpopo Province on these matters, with a copy sent also to the Committee.

The Committee accepted the negotiating mandate.

Mpumalanga Provincial Legislature
In the absence of a permanent delegate, the Chairperson presented the Mpumalanga Province’s negotiating mandate to the Committee. The Province voted in favour of the Bill with no amendments.

The Committee accepted the negotiating mandate.

Northern Cape Provincial Legislature
Mr Mokgoro said the Northern Cape Province voted in favour of the Bill.

The Committee accepted the negotiating mandate.

North West Provincial Legislature
In the absence of a permanent delegate, the Chairperson presented the North West Province’s negotiating mandate to the Committee. The Province voted in favour of the Bill.

The Committee accepted the negotiating mandate.

Western Cape Provincial Mandate
Mr De Beer said the Western Cape Province had a number of amendments to propose.

The first was to section 1, where the Minister should be identified as the competent authority.

Mr Ishaam Abader, Deputy Director General: Legal, Authorisation & Compliance Inspectorate, Department of Environmental Affairs, said that this Department (DEA) did not agree with this amendment. There was a co-operative governance agreement reached by the ministers, in terms of chapter 3 of the Constitution, and this was also a policy decision accepted by Cabinet.
 
Ms Ntombi Mnyikiso, State Law Advisor, Office of the State Law Advisor, agreed with the Department’s reasoning, noting that the proposed amendment would also affect other legislation.

Ms Phumelele Ngema, Parliamentary Legal Advisor, agreed with the State Law Advisor.
 
Mr De Beer noted the rejection of that request.
 
The Eastern Cape, Limpopo, Northern Cape and Gauteng rejected the proposed amendment by the Western Cape Province.
 
Mr Worth asked that the Department write to the Western Cape. He said that the Free State had accepted the proposed amendment by the Western Cape Province.
 
Mr De Beer noted the next proposed amendment by the Western Cape, to section 2 (see attached negotiating mandate for full wording).

Mr Abader said the Department did not agree with this proposed amendment either. This was a practical implementation issue, relating to response times.

Ms Mnyikiso agreed with the reasoning by the Department.
 
Ms Ngema said the proposed amendment would complicate procedures, so she agreed with the Department.

Mr De Beer said that, after hearing the explanation from the Department, he would reconsider that proposal.

The next proposed amendment by the Western Cape Province related to appeals, under section 43.
 
Mr Abader said the Department did not agree with either option presented, as there was no good reason why a decision should not be suspended until the appeal was finalised. The stipulated 90 day period for finalising the appeal process was agreed to.

Ms Mnyikiso supported the Department, saying that any appeal would suspend the activity immediately until the outcome of the appeal was reached. The proposed amendment would then pose practical challenges.
   
Ms Ngema agreed.

Mr De Beer noted this but still supported the proposed amendment.
  
The Eastern Cape, Limpopo and Northern Cape rejected the proposed amendments by the Western Cape Province.

The Free State supported the proposed amendments by the Western Cape Province.

Negotiating Mandates on the National Environmental Management: Waste Amendment Bill
Eastern Cape Provincial Legislature
The Chairperson said the Eastern Cape voted in favour of the Bill.   

The Committee accepted the negotiating mandate.

Free State Provincial Mandate
Mr Worth said the Free State voted in favour of the Bill, with the following amendments:
Firstly, the dumping site should be outside the residential area.

Secondly, the proposed insertion of Part 7A in Act 59 of 2008 provided for the establishment of a Waste Management Bureau (WMB). There was much merit in the concept as it provided a specialised organisation, but there was uncertainty as to what the scope of the WMB would be. For example, he asked to what extent it would directly control the operations of waste management plans. It was proposed that it would not have a Board, but only a Chief Executive Officer, reporting to the Director General of the DEA, which concentrated a very wide scope of policy – and decision-making -  in one person. The lack of clarity on the limits of authority of the Bureau and the apparent absence of accountability in the envisaged structure created a level of uncertainty that would seriously discourage the very large scale investment needed by any organisation setting out to establish the kind of infrastructure required to manage a comprehensive integrated industrial waste management policy.

He said that therefore the Free State wanted to propose the retention of the Board, as leaving these functions to a CEO would lead to lack of independence, particularly if that individual had to be appointed by and report to the Director General.

He indicated that the public hearings had expressed support for the Bill, otherwise.

Mr Abader did not see any proposed amendments, but noted that comments were made and would respond in writing to the Free State Province on this.

Mr Worth indicated that he would be satisfied with that.

Gauteng Provincial Legislature
Ms Mabe said the Gauteng Province voted in favour of the Bill.

The Committee supported the negotiating mandate.

Kwazulu-Natal Provincial Legislature
The KZN delegate said the KZN Province supported the Bill, provided that the proposed amendments and comments were considered in the Bill.

The first proposed amendment was to section 13B(c) which envisaged the passing of an Act in accordance with section 77 of the Constitution. This was viewed as unconstitutional and must be deleted.
 
Mr Alf Wills, Deputy Director-General: Environmental Advisory Services, DEA, said this set of comments emerged from the Portfolio Committee’s public hearing process. In essence the issue being addressed here was the feeling that the current arrangement, where industry waste management plans applied charges to other companies in the industry, created huge governance problems. There were also concerns from the NGO community, who questioned whether one private company should be levying charges on another. There were also questions on what guided the formulation of charges or whether the private companies were simply assessing their own charges. The Minister consulted nationally on the formulation of a pricing strategy, and all charges emerging from that consultation would go, via a section 77 Bill, through Parliament. This was part of a policy shift from the Minister. Given that context the DEA did not agree with the proposed amendment.
Ms Mnyikiso supported the Department and said it would be unconstitutional to have the pricing strategy contained in the Waste Bill.

Ms Ngema agreed that the pricing strategy would be unconstitutional if it was not done by way of a section 77 (Money) Bill.

The Eastern Cape, Limpopo, Northern Cape, Gauteng, Free State and the Western Cape rejected the proposed amendment by the KZN Province.

The KZN delegate moved onto the next proposed amendment. It had been suggested that in the purposive interpretation of section 77, a Money Bill was not required. The proposal supported the Northern Gauteng High Court’s judgement in Retail Motor Industry Organisation and another v The Minister of Environmental Affairs and Another, handed down on 21 November 2012, where Trutchen J held that the Waste Act made sufficient provisions for the funding mechanisms of WTMPs and that a Money Bill was not required.

Mr Wills said this amendment was similar to the issue discussed under the first proposal. He asked the Committee to note that this particular court case cited related to one waste stream industry only, while the intent of the Pricing Strategy and the Bill was to apply for all identified waste streams.
 
Ms Mnyikiso and the Parliamentary Legal Advisor agreed with the Department.

The Eastern Cape, Limpopo, Northern Cape, Gauteng, the Free State and Western Cape rejected the proposed amendment by the KZN Province.

The next amendment by KZN was in relation to the proposed Waste Management Bureau (the Bureau). KZN submitted that there would be lack of oversight by clause 13, as the Bureau would be headed by a CEO who would be reporting to the Director General. The Bureau would not be headed by a Board and as such, it would not have independent control and oversight. It was therefore proposed that the Bureau must be independent and be headed by a Board.

Mr Wills noted that this was not actually couched in the form of a proposed amendment but said that the DEA’s response would be submitted in detail. The intent of the Waste Management Bureau was that it should mobilise and appoint the experts. The problem was that there were very few experts in the country, but the Department should be able to compete with the market place in getting relevant, specialised expertise. The concern was that the creation of new public entities should not replace the work which was to be done by the Department. The problem was how to get or attract the relevant, specialised expertise for employment.

Ms Mnyikiso and the Parliamentary Legal Advisors agreed with the Department.
  
Mr Abader added that the DEA would respond in writing. He highlighted where in the Act the powers of the Minister were discussed, noting that it was incorrect to speak of the Chief Executive Officer or Director General “being reported to” by the Bureau. Instead, it was the Minister who would set the policy framework within which the Bureau would actually function. There was an oversight role for the Minister. This should be considered by the Committee when making its decision.
 
The Eastern Cape, Limpopo, Northern Cape, Gauteng, Free State and Western Cape rejected the proposed amendment by the KZN Province.

Limpopo Provincial Legislature
Mr Makhubela stated that the Limpopo province voted in favour of the Bill. The province recommended that “municipality” be added after “provincial department”. 

Mr Mark Gordon, Deputy Director General: Chemicals and Waste Management, DEA, explained that, in terms of section 28 and 29 of the Act, industry waste management plans could only be approved by the Minister or an MEC. For municipalities there were Integrated Waste Management Plans which were approved by the provincial Integrated Development Plan (IDP) system.
 
Ms Mnyikiso said this was a policy related matter.

Ms Ngema agreed with the Department and rejected the proposed amendment by the Limpopo Province.
 
Mr Makhubela noted this.

The Eastern Cape, Northern Cape, Gauteng, Free State and Western Cape rejected the proposed amendment by the Limpopo Province.
 
Mr Makhubela moved onto the next proposed amendment, saying that Limpopo had proposed that,  in clause 17(ii)(7) the “60 calendar days” by substituted by “six calendar months”.

Mr Gordon responded that 60 days was the timeframe for the initial amendment to be sent to the Department. Once this was done the pricing strategy and Money Bill needed to be approved and then only was the amendment of the plan considered, in terms of the provisional transitions. The Department rejected the proposed amendment because there was more than enough time provision already given for consultation between the applicant and the Department to align the specific plans.
 
Ms Mnyikiso agreed that 60 days, which was two months, was more than enough time, and unless the Limpopo province could substantiate why six months were needed, the proposed amendment was rejected.

Ms Ngema said this was another policy decision, but she would support the views of the Department.

Mr Makhubela agreed with the Department.

Mpumalanga Provincial Legislature
In the absence of a permanent delegate, the Chairperson presented the Mpumalanga negotiating mandate to the Committee and said that Province voted in favour of the Bill.

The Committee accepted the negotiating mandate.

Northern Cape Provincial Legislature
Mr Mokgoro stated that the Northern Cape Province voted in favour of the Bill. 

The Committee accepted the negotiating mandate.

North West Provincial Legislature
In the absence of a permanent delegate, the Chairperson presented the North West negotiating mandate to the Committee and said that the Province did not concur with the amendments to the Bill. The Province was concerned with the waste pricing strategy coming through the national fiscus system, and asked what this meant.

Mr Gordon said the waste pricing strategy would be broadly consulted with all stakeholders so the concerns raised by the Province were pre-emptive in the sense that a pricing strategy had not been finalised yet. All the processes still needed to be finalised. There would be extensive consultation and proposals made, which would be considered.

On the interpretation of when waste ceased to be waste, he pointed to the definitions. These set out that once a waste product was reused, recovered and/or recycled, it ceased to be waste. Tyres were then also used in the context of the item being a waste, and a waste management licence would then be needed. Such discussions were held in consultation with the provinces in terms of implementation of the amendment. It was envisaged that a detailed, comprehensive guide be provided for the implementation of this amendment, which would deal with questions around what was a waste, what was not, and how it would be implemented.

In essence, he summarised that these proposed amendments were rejected based on the explanations above.

Ms Mnyikiso said there were no specific drafting or constitutional issues, this would be dealt with by the Department.
 
Ms Ngema agreed that the Department was in a better position to deal with the implementation of Bill and questions raised, as there were no drafting issues to deal with.

The Chairperson asked that both Departments respond in writing by 10h00 on the following day.
 
Western Cape Provincial Legislature
Mr De Beer said the Western Cape Province rejected the Bill in its current form. 

Mr Gordon noted there were no specific amendments proposed.

Ms Mnyikiso said that although there were no specific proposed amendments, she wanted to highlight that section 134 of the Constitution dealt with the role of the municipalities in co-operative governance. The issues raised by the Western Cape Province were already dealt with through the legislative process, with the Bill having being published for public comment before it was introduced in Parliament. Comments by stakeholders were taken into account, which explained why the Bill was so extensively amended through the National Assembly process.

At this point, the Chairperson asked that the meeting be closed for a short while, for internal Committee business to be discussed. On resumption, the Committee moved to a briefing from the Department of Rural Development and Land Reform.

Property Valuation Bill: Department of Rural Development and Land Reform briefing
An official from the Department of Rural Development and Land Reform (DRLDR) noted that access to, and proper use of land and property as resources, were essential to the social and economic well-being of the South African society. For government particularly, land and property were vital resources by which a wide range of socio-economic objectives were pursued. The market mechanism was the primary means by which access to these resources were obtained. At the heart of the market mechanism was the pricing and valuation function and the requirement for the proper determination of property values. Over the past 18 years the state had not been able to significantly redistribute productive assets to the benefit of the historically marginalised people. Income inequality, poverty and unemployment had escalated, as shown by a number of studies.

Ms Mabe interjected and asked that the presenter summarise, rather than read through the presentation word for word.

Mr Worth asked why the Bill was tagged as a section 75 instead of a section 76 bill, saying that surely the discussion of valuation affected property everywhere.

The Chairperson asked that questions be held over until the end of the briefing. She asked that the Department summarise the presentation.

The Departmental official continued noting that by way of background, the Bill served before the Portfolio Committee on Rural Development and Land Reform, and was passed by the National Assembly on 12 March 2014, with some amendments.

It was noted there were two particularly salient problems around the land acquisition strategy for land reform, which were the slow pace of land reform and escalating land prices paid by government. Both were closely associated with the compensation regime that was based mainly on market value, with other alternatives not really having been considered. The market value was in turn based on the willing-buyer wiling-seller principle, and the “market-value” was derived from comparison of prices paid for similar properties in the market. Part of the problem was that government could not be conceived of in the same sense as other “willing buyers”, for it had constitutional obligations to effect land reform. There were also gaps in the capacity of government to interpret the price dynamics of land and property markets at various scales. Gaps were also experienced in the legislative and regulatory framework underpinning the valuation industry, and the absence of a competent organ to lead.

There were four main policy proposals outlined in the Bill, namely:
- Government should be able implement the constitutional requirement of “just and equitable compensation” as enshrined in the Constitution
- Government should make greater use of expropriation in its land acquisition strategy
- Government should establish an autonomous Office of the Valuer-General (OVG)
- Government must enhance land market information analysis and policy formulation.

According to the Regulatory Impact Assessment (RIA), which considered several options, an autonomous OVG was recommended. An in-principle decision was taken to approve the establishment of a fully-fledged OVG. A business case was compiled, which was being discussed with the Department of Public Service and Administration, to establish this Office.

The presenter went on to describe the structure of the Bill. Chapter 1 contained general provisions. Chapter 2 looked at the establishment, status, functions and powers of the OVG. The OVG was set up for the valuation of properties identified for land reform purposes, but could also act where another department had made a request for a valuation service. The OVG was also responsible for developing criteria and procedures for the valuation of property that had been identified for land reform purposes, and monitoring the proper, efficient and effective valuation of such properties based on set criteria and procedures.

Chapter 2 also outlined the requirements for the Valuer-General and the Chief Operating Officer. The Valuer-General must be a South African citizen, a registered valuer and have sufficient experience in or knowledge appropriate for public administration, public finance or legal and constitutional matters affecting public administration. This person would be responsible for the performance, by the OVG, of its functions. The OVG would be the accounting authority. The chapter also provided for the appointment of a Chief Operating Officer, who would be responsible for the day to day management of the OVG.

Chapter 3 dealt with valuation of the property and provided for valuation by a registered valuer of property that had been identified for land reform, for purposes of determining the value of the property. The definition of “value” had been linked to section 25(3) of the Constitution. The chapter also provided for the acquisition or disposal by a department, for any other purpose than those mentioned in sub-paragraph 1 – namely for purposes noted outlined in section 25(3) of the Constitution. The chapter also provided for the preparation of valuation reports and the imposition of valuation fees.

Chapter 4 of the Bill dealt with financial and other matters. Part I dealt with financial administration, set out the funding for the OVG and the auditing of statements and records. Part 2 dealt with miscellaneous matters, for example, delegation of powers and duties by the Valuer-General, the regulations, and the Short Title and commencement date were then set out.

It was highlighted that extensive consultation was held on the Bill by the Department with a number of stakeholders.

The financial implications were described. The initial indications were that government funding would be needed for the first three years of operation, estimated at R75 million for year 1, R60 million for year 2 and R50 million for year 3. The Bill was also supported by the Minister of Finance in Cabinet. Money would be available for the purposes of the Bill.

Discussion
Mr Makhubela was worried about discussion on slow pace of land reform and escalation of prices. He did not want to unduly politicise the issue, but it was very serious. If people did not agree with him, then he suggested that they read the Bible, Joshua Chapter 13. He said the Department would be “shocked about the issue of land”. He asked for clarity on what was meant by “autonomy of the Office of the Valuer-General”. He asked for the budget for the projected staff complement and an outline f the recruitment strategy. He also sought clarity on the use of the definition of “value of land” in the Bill.

Mr Mokgoro questioned whether, when the Valuer-General attached a price to a piece of land, that would be regarded as final, or whether it was an estimate that could be debated or argued. He recommended that serious consideration had to be taken of the historical facts around land acquisition. When the land was acquired by land-owners, it was necessary to remember that the first, second, and possibly even the third generation of land owners in the country did not buy the land. All through history these generations had owned the land. Land ownership in South African was still skewed to a particular race. This was why, today, there needed to be an equitable redistribution of land. It also had to be borne in mind that land owners had, throughout history, benefitted from the land, and this should also be a factor to be considered when the land was being valued.   

Mr Worth asked the Department about the implications of owning land in communal areas. He wondered if this Bill did not need to be sent to the House of Tradition Leaders. He wondered if the Bill was not contradicting the Restitution of Land Rights Amendment Bill, which was tagged as a section 76 bill.

Mr De Beer asked how the Department would deal with traditional leaders, and questioned why they appeared to have been excluded from the list of strategic stakeholders consulted, according to the presentation. Large portions of land were owned by traditional leaders and he questioned whether and why the Department apparently did not consider the traditional leaders important stakeholders. He also asked why the Bill was tagged as a section 75 and not 76 bill, as he too had thought it would be a section 76 bill.

Ms Mabe was concerned whether the OVG would have sufficient capacity, or an appropriate budget, and pointed out that if this was not given, it could delay instead of fast-tracking matters. She felt that timeframes were needed, and said that the Committee could see commitment, as to when the Department would start with implementation. The land issue was a burning question on which people could not wait any longer.

Mr Mokgoro looked at the list of stakeholders and did not see the land-hungry people being mentioned. The list only included those stakeholders who had money, land or had a voice already. The people who did not have land should be the main stakeholders, but they were not included in the list. He seriously recommended that the Department should reconsider this point.

The Chairperson asked that the Department respond to these questions in writing by the following morning, at 10:00, to each Member individually, and the Department confirmed that this would be done.

Ms Mabe asked about the legality of status of the White Paper referenced in the presentation.

Mr Fanie Louw, Legal Services: DRDLR, explained that the White Paper was merely a policy document and did not have the force and effect of a legal Act of Parliament.

Other Committee Business:
Legacy Report

The Chairperson noted the Legacy Report had been distributed to Members but it could not be adopted because the Committee did not form a quorum. Committee Minutes could also not be adopted. Time was also limited as there was a plenary session this afternoon.

Integrated Coastal Management Bill
The Committee Secretary informed Members that the Integrated Coastal Management Bill had been sent to mediation because the Portfolio Committee on Water and Environmental Affairs did not agree with the Select Committee’s amendments to the Bill. The mediation committee had been ATCed and the membership had been confirmed. A date had been set but it appeared the NA Members were unavailable so a consultation between the Chairpersons would take place to arrange a date. The NCOP had made a commitment to mediate on Thursday morning but it was now up to the NA to determine whether that could happen. 

The meeting was adjourned.

 

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