Land Rights Management Facility: briefing by Department of Rural Development & Land Reform

Rural Development and Land Reform

29 October 2014
Chairperson: Mr PJ Mnguni (ANC)
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Meeting Summary

The Land Rights Management Facility (LRMF) is providing assistance to farm workers, communal property institutions and people applying for land restitution by providing legal and mediation services. The purpose of LRMF’s contract with Cheadle Thompson & Haysom (CTH) was discussed alongside their responsibilities. The presentation provided the Committee with several illustrations and statistics relating to the LRMF’s work, including the types of cases they are involved in, numbers of cases across provinces and municipalities and expenditure.

Member expressed concern during the discussion about the relatively low number of cases, their success rate and the LRMF’s spending. How was their budget calculated? Legal services are a large portion of their expenditure – why are they outsourcing to CTH? How exactly does the DRDLR help those whose cases are unsuccessful? Are farm workers fully informed of their rights? How do they apply to the LRMF for help? Members asked whether there was any overlap between the LRMF that deals with the adjudication of disputes and the district land committees that facilitate land redistribution. Why does the Department of Justice (DoJ) appear to have no involvement? Does the DRDLR engage with the Department of Agriculture, Forestry and Fisheries (DAFF)? How do they link with the district land committees? What is the DRDLR’s key delivery? Other questions referred to eviction timeframes, the relationship between the National Development Plan (NDP) and land, conflicts in policy, lawyer statistics according to age, gender, race and disability, the geographical positioning of cases and the Extension of Security of Tenure Amendment (ESTA) Bill.

Meeting report

Mr PJ Mnguni was elected as the acting Chairperson in the absence of Ms PC Ngwenyta-Mabila (ANC).

Land Rights Management Facility: briefing by Department of Rural Development and Land Reform
DRDLR Chief Director: Land Reform, Ms Vuyi Nxasana, gave an overview of the LRMF’s function and rationale. It was established in 2007 to provide legal and mediation services to indigent farm occupiers including labour tenants, workers and claimants in terms of the Restitution of Land Rights Act (RLRA). It has legal and mediation panels throughout the country and in 2010 expanded their mandate to include other land reform programmes. Individuals and communities can report tenure and restitution matters to District and Provincial offices where assessments and approvals for legal or mediation services are done.

Cases of restitution by the Chief Land Claims Commissioner (CLCC) are referred to legal firm Cheadle Thompson & Haysom (CTH) who appoint panellists based on criteria such as the complexity of the case, its vicinity and the language of individuals involved. They monitor developments with the referring office and provide bi-monthly and quarterly reports. They are responsible for the receipt, checking and settling of invoices from panellists, and for capacity building through training and review sessions. There have been 139 mediation cases so far. Of the 106 that have been closed, 42 were successful and were 64 unsuccessful.

The DRDLR provided several graphs and tables illustrating statistics for LRMF including number of cases per province and per year, categories of cases, outcomes, expenditure, contingent liability and municipal hotspots amongst others. The majority of cases related to eviction, with KwaZulu-Natal and Western Cape having overall the highest numbers of cases at 437 and 420 respectively. However, Free State’s Dihlabeng Local Municipality had the most cases for municipalities at 130. Of the current restitution matters, Mpumalanga has the most cases relating to tenure at 57. 47% and 98% of those relating to restitution go to the Land Claims Court. The spending on land tenure was 45% at R38 429 635, restitution 35% at R29 757 027, communal property institutions (CPIs) 17% at R14 691 919 whilst mediation was 3% at R2 617 553.

The quarterly report was provided to give members a broader picture of the DRDLR’s activities.

Mr M Filtane (UDM) said that, despite the high success rate, there were still people whose cases did not achieve the desired outcomes. What did the DRDLR do with the 20% of cases where the process has not been successful in helping those involved? Members are aware of how vulnerable farm dwellers can be. How does the DRDLR ensure all potential beneficiaries of the process are informed of their rights?

Mr T Mhlongo (DA) referred to the black and white hardcopies of the presentation. Colour coding is needed for members to provide active oversight because the bar charts look the same in black and white. The Chairperson agreed with Mr Mhlongo. 

Mr Mhlongo continued that legal services made up 44% of the budget since 2012. Why is the LRMF using so much money? Why are these services outsourced? The presentation suggests in 2008 both mediation and legal services were outsourced, but cases began in 2001. How much did this cost? Could he have a copy of the contract and the tenure document? How many mediators are there per province? When is the contract with CTH ending? When will it be re-advertised? On finances, in 2012 they go to R4 291 943 then in 2013 it goes down. Why is this? How is the Communal Tenure Policy (CTP) upheld in the process? Clarity is needed on the mediation cases, what is meant by success? Why is it that a case is unsuccessful? Could the legal services outcomes per category also be illustrated by province?

Mr E Nchabeleng (ANC) commented that the presentation suggested members needed to look beyond the superficial figures. It is a challenge to support labour tenants - more so than academics, lawyers or doctors, for example, due to the standard of their education. Access to resources includes the knowledge and information needed to succeed. Restitution will not be able to complete its work in the next 7 years. There is a lot to deal with and a time frame is hard to work to. It took many years of wars and laws to dispossess people of their land so they are working under great constraints. The social system is based on profit making - no one runs a business as a charity and the land is at the centre of this. The foundations of the Constitution and social system need to be reviewed, but it is not democratic to simply take away the land and give it to the poor. There needs to be a reasonable solution. The contributions of people helping the government in these matters are taken very seriously. If there is nothing wrong with the contract, the arguing should be left to the DRDLR and CTH. Primarily, however, the time frames should not be unreasonable.

Mr T Walters (DA) said he was concerned that the DRDLR was developing institutions which were dealing with justice, without the Department of Justice (DoJ) being involved. The concept of access to justice should be dealt with in a court of law, but it is becoming a matter for the DRDLR. The function of the body covers all kind of issues and if the DoJ are not involved there will be confusion in the South African system in dealing with land rights. It appears to be a department created due to a legal vacuum, but now lots of other things are being latched on to it. Where policies are not consistent in other spheres of government it becomes the dumping ground of other issues, so it could prove problematic in the future. The DoJ should be involved and it should be far more clearly defined moving forward. How does the LRMF link with other land committees at district level that are part of the National Development Plan (NDP)? They are supposed to be dealing with very similar issues, is it part of a comprehensive operation between institutions or is there the potential for overlap? It is a high level issue that needs to be engaged with. As for beneficiaries of land reform, there are a number of problems that arose when people signed leases with government regarding land reform projects, such as the farmer settlement project in Gauteng. Some beneficiaries feel exploited and there are all kinds of mediation and legal issues that arise. How do they fit into the LRMF?

Mr A Madella (ANC) wanted clarity on the mediation cases. The figures add up to 130, but there have been 139 matters so far. What happened to the 9? With regard to the Breede Valley municipality, it is one of the hot spots. It is one of the areas where farmer workers came out to campaign for higher wages. The figures suggest there was around a million people being forced off farms. This does not appear in the report. His concern with regard to the figures is that they are much higher than stated. Has the DRDLR being engaging the unions? What part does the Department of Agriculture, Forestry and Fisheries (DAFF) play in this? In terms of dealing with issues on the ground, are there any forms of cooperation between the departments? The total number of cases that spans from 2009 is 1 863 - this is an incredibly low number. How do farm workers facing eviction apply to the LRFM for help? Is it accessible? Has it been advertised and promoted so that individuals know about the services and how to access these?  Members cannot be satisfied that 64 of the mediation cases have been unsuccessful. It is more than 50%, why is this? 

Mr Mduduzi Shabane, Director-General at the DRDLR, addressed Mr Walters concerns. To contextualise the LRFM, the Legal Aid Board has historically dealt with these matters. DRDLR used to work together but their scope became too narrow and the Legal Aid Board was constrained in terms of resources. The DRDLR could not watch people get evicted and do nothing about it. The Department had a specific mandate and provides relief to those who cannot defend themselves. The DoJ have consequently downsized their role in this area. They still provide legal assistance, but not necessarily in the context of officials and that clarification is important. The reason they felt that LRFM should not deal with evictions and mediations only,  is that it administers the legislation that allows the Department to intervene when there are disputes within Communal Property Associations (CPAs). There are large amounts of resources at the disposal of CPAs, but there are members who are not benefiting and consequently need the DRDLR's help to get their land back. Due to this obligation, the Department felt it was necessary to expand the scope of the LRMF. As much as the CPA Act gives the DRDLR the ability to intervene, it does not provide for resources for such interventions. The amendment they intend to bring to Parliament will develop capacity, so that it focuses on land rights to stop the possible drift in purpose. The relationship of the LRMF with the district land committees needs streamlining. In resolving some disputes, it may be necessary to acquire land to provide long term security. They play different roles - the LRMF deals with the adjudication of disputes whilst the district land committees are more concerned with facilitating land redistribution. In the resolution of the disputes, some may want to acquire land and they will be referred to the district land committees. There is a working relationship between the structures. There is a challenge with advocacy – the DRDLR is not as strong as it should be in terms of ensuring that the near 3 million people living on commercial farmland in South Africa know about the LRMF. Outreach and communication is an area which could be improved on a great deal. There may be many more people being evicted, but the LRMF can only report on the numbers that it has dealt with and that is reinforced by evidence.

Ms Nxasana responded to Mr Filtane on the success rate, and what happens to those who are not dealt with. Previously she was involved with dispute resolution and training, and she learnt that the success rate of any dispute can measured in terms of two steps forward and twenty steps back. There is no guarantee that a dispute will not arise again in the future and, similarly with land disputes, they will not necessarily be immediately resolved. Therefore, the success rate is in accordance with the complexity of the matter that is being dealt with. It should be seen as a process, and the DRDLR has to concern itself with follow up - how can the people involved be supported afterwards? They play a role in monitoring and evaluation. The functions detailed in the Extension of Security of Tenure Amendment (ESTA) Bill relate to this. It discusses an implementation strategy that is comprehensive, looking at information dissemination, statistics and creating a database about who is on the farm. As the DG has indicated, the LRMF can only deal with the cases that are reported. There is a toll free number which farm dwellers need to know about and they have tried various methods of information dissemination including newspapers and radio. However, their advocacy role is not what it should be and the DRDLR must work with land NGOs, paralegals and structures on the ground. Information dissemination has to be directed at everybody to build a land rights culture that respects the rights of the owners and the occupiers. The reason that state law advisors are not used is because there are so few specialists that even if they wanted to, they could not. There were some instances where the Legal Aid Board was dealing with criminal cases but the DRDLR had tried to force them to get involved with civil matters. They placed resources within the Legal Aid Board to try and build their capacity but they were moving further away from land rights issues, leading the DRDLR to come up with its own unit. DRDLR still hopes to bring them back on board with regards to land rights management boards and committees. The DoJ is still deeply involved with the training of magistrates and law enforcement agencies, and they administer the legislation that establishes CPA trusts. The point about the timeframe was spot on - 300 years of disposition is not going to be immediately resolved. The list of contact details will be provided to the Committee and there is an MoU with the DAFF, with strategic planning being done together. Most people on farms have cell phones but the call system needs improving. They are engaging unions about institutional arrangements, in addition to the private sector and civil society organisations to further develop the policies and implementation strategies.

Mr Masiphula Mbongwa, Acting DDG: Land Tenure and Administration, DRDLR, commented on the municipality hotspots. The Minister did a fact finding mission that came to the Western Cape on 19 October regarding this matter. Meetings were held with the governance sector across the province and facts and figures were requested. DRDLR fact finding mission also asked how they dealt with these matters, the structures used and identified trends. It dealt with homes, labour, justice, police and civil society organisations amongst others and asked what they could add. The majority of the figures confirmed what has been presented. A report will be presented to the Minister after all the data has been analysed from the various sources.

Mr Jomo Ntuli, Director: Land Right Policy and System Development (Tenure System Reform), DRDLR, added that the contract started in 2007 but the operation started in 2008 because they had to go through the outreach process of advertising. It ended in 2011 and advertised again for three years, and this ends in 2015. It is difficult because court cases can go either way, but the DRDLR looks at the trends to project the potential number of cases and establish a budget. For 2014 it was R63 million and for 2015 it is R69 million. Regarding provincial spread, the breakdown can be provided by race and gender. The provinces of primary concern due to fewer numbers are North West, Northern Cape, Limpopo and Mpumalanga. In terms of how people come onto the panel, it was advertised within the industry and potential lawyers and mediators applied. There was a committee that looked over the CVs that were received and those selected had training. It is important that people demonstrate commitment to the work to avoid a lawyer representing both a farm worker and an owner because workers would lose confidence in them. As to what successful and unsuccessful means, mediation is a growing concern. Sometimes it does not give the desired results and is referred to litigation. The system they are using to capture the information is in real time, so if there has been a recent update of the case the figures will change. The nine cases that are missing are those waiting for different instruction from the Department, for example whether it should be referred to litigation or dealt with internally. As already highlighted, the DRDLR needs to do more in terms of information dissemination. They ran an extensive communications campaign and they have a call centre whose number is advertised. The cell phone companies are being engaged with because they have not given the DRDLR the ability to allow those calling from cell phones to call for free, it is only when calling from a landline. It is an issue going forward. Invoices are those received from lawyers or mediators on a monthly basis. On average there are a 120 a month but in months such as December and January there are fewer. A lot of the expenses are on restitution matters.

The Chairperson referred to the budget. It was R63 million in 2014 and going to R69 million in 2015 according to projections. Committee members want snapshots of follow ups so they can compare from year to year. December 2012 was very low compared to December 2013 which is very high. There is a difference of almost R3 million. It would have been useful to have a line reflecting the projections alongside the actual spending.

Mr Filtane asked for a more specific explanation on what the DRDLR did when cases were unsuccessful. How do they follow up on them?

Mr Mhlongo asked what the turnaround time was for eviction. In relation to finances, could the DRDLR project how much money they actually use? How is the Department going forward in 2014/15? Intergovernmental relationships are a problem. One of their key deliveries is to maintain and update panel lawyers and mediators. Is that the DRDLR's key delivery? It also says another key delivery is to provide legal representation based on the RLRA but in the overview there are several more functions.

Mr Walters said he still got the impression that there was still a problem, from the answers about how the institutions are meant to prevent illegal evictions and create a fair tenure environment. There is an intimate relationship between the NDP and land committees because it is about more than requiring land, it is also about its sustainable use. It is something that needs to be interrogated by the Committee going forward. There are policies which are potentially contradictory. There are some which historically clash with one another but they need to engage to create a strong agricultural sector as well as obtain justice for people. There is an issue of coordination with regard to the DoJ and other institutions operating in the same space. Farm evictions should not simply be looked at in a politically charged atmosphere. The poor provinces need to be looked at in terms of illegal evictions and acts of injustice to create an infrastructure that produces justice for both farm workers and farmers. It is an intimate relationship - if farmers fail there will be a bigger problem in terms of evictions. A clear understanding is needed of evictions, policy and economic drivers, in addition to the industry that is being discussed. For example, there is a difference between an eviction on a sheep farm in the Karoo to a sugar farm in KwaZulu-Natal - there are different economics at work and therefore it is necessary to look at the infrastructure of justice created in the rural development system. Evictions need to be understood in terms of the policy and economic imperatives that are impacting on that. Members will want to see the report going to the Minister as soon as possible as well, as it will show to what extent these issues are being addressed.

Mr Madella asked for the breakdown of lawyers according to age, gender and race. Could they also do it by disability?

The Chairperson commented that the presentation slide on mediation figures was not clear enough - the sub-figures should be tabbed. Regarding the Legal Aid Board, the Portfolio Committee on Justice has made the recommendation for them to continue to have some scope over legal cases on farms. Ms Nxasana said it was reducing, but the latest report directs the Legal Aid Board in that direction. DRDLR also mentioned the ESTA Bill - when is it coming before Parliament? Once it comes before the Committee they must conduct public hearings and the parliamentary programme might be affected. It is important that the cell phone issue is resolved because some farm dwellers may not have a landline from which they can call. Otherwise it is not a free call. In some reports the Committee picked up the total number of cases as 1 863. In others it is 1 024. Is the former an accumulative number? In dividing the number of pending mediation cases into the east and west regions, there were only three cases in the west. Why are there so few cases in these areas?

Mr Shabane said projections can be based on trends - spending over the past five years and the average number of cases allows the DRDLR to develop an informed basis for making projections. Responding to Mr Walters, he said it was not a conflict of policy but something that they must work on to align. The district land committees’ proposals are yet to be established so they must be mindful in bringing other legislation into operation so that they work together. They can provide statistics on age, gender and disabilities as requested. They intend to engage cell phone companies on the free call issue. On legislative amendments, they have five bills that must go to Cabinet for their approval and then go on to public consultation. When the executive say they are satisfied with the bill they will bring the bill to Parliament early next year. The Committee can call different hearings and make its own decisions. The DRDLR is entirely in the hands of the Portfolio Committee.

Ms Nxasana said the DRDLR had always engaged the Legal Aid Board. There is agreement that they can deal with legal cases on farms and they are closely engaged because the DRDLR see them as allies in the space of land rights. The spread of legal aid offices show that they still focus primarily on urban rather than rural cases. There have been discussions about the training they need and they have said they will come on board. With regard to the differences in farming industries, it is clear that analysis needs to be done and the DRDLR does not want to jump to conclusions. They collaborating with the International Labour Organisation to do a study on the livelihoods of people on farms. The first preliminary study is completed and they are hoping to bring it back to the Committee after it is concluded at the end of the month. Its establishment was commissioned on the eve of Human Rights Day in 2013, so they will be keen to pick up on points raised.

Mr Ntuli said that where the DRDLR was unsuccessful according to the statistics, for example in failing to take the matter to court or trying to prevent an eviction, it could be seen as a success in that the eviction was in accordance with the Act. There are measures in place for those who have to leave a farm as the Department has looked at other options, such as looking at farms elsewhere. There are various interventions that take place at provincial offices to assist workers.

Mr Filtane pressed for more specifics. What exactly does the DRDLR say to those who lose their cases and they have not been successful in helping them?

The Chairperson agreed. It is a humane concern.

Mr Ntuli said he would not be able to give a direct answer because every case was different. For example, the provincial or district office may try to negotiate with the municipality to find accommodation off-site or they  will apply for an extension. If it is an eviction where they must leave farm an alternative will be looked at. It depends on the case. In some instances they will get a call saying that the appeal has been refused and the case will be dealt with quickly. Other circumstances are more complicated, for example if a worker brings a long distance relative to stay with them.

Mr Mbongwa added that they had had 20 cases cited by the Farm Worker Forum where, in terms of the court cases, they were classed as unsuccessful. However, the DRDLR had been successful in reinstating them because, for example, community members had approached the farmer and strong engagement had resulted in their being able to return. So additional negotiations did work in some cases that are not portrayed in the statistics.

Mr Filtane appealed to the DRDLR to devise a process for unsuccessful cases. It evidently does not have a plan because Mr Mbongwa is suggesting that processes outside of the Department's sphere take place. People have to go back and resettle matters on their own. He understands that the land is deep and diverse, but an effective programme for helping cases that have not been successful is needed.

The Chairperson agreed. It is an important point - losing one case is one case too many. Who speaks on behalf of the person forced onto the street?

Mr Walters said he thought there was an alignment issue given the impact evictions could have on people. Where is the Department of Social Development with regard to these matters? How do these institutions interact with each other?

Meeting adjourned.

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