South African Human Rights Commission (SAHRC) presented a report on the systematic challenges affecting the land restitution process in South Africa. A progressive realisation of socio-economic rights was important, but the processes relating to land restitution was moving slowly. District Six land claims still remained unresolved, while there were also other land claims across the country where resolution had not been reached. Socio-economic rights could not be given to land claimants if they did not yet have land, and South African law should be used as the context for restitution. The Land Claims Court was a circuit court, and many land claims reached the court without proper preparation. The backlog of unresolved restitution claims raised concerns. The Commission wanted to identify the root cause of the problems and noted among others, a lack of technical expertise, a high turnover of staff and research issues.
The Committee asked whether there had been engagement with the Department after the report was concluded. Why had land claims remained unresolved nearly two decades later? Were the SAHRC recommendations binding? What was the responsibility of the Department in terms of the recommendations, as noted in the report? Was there a definite time known when land restitution would be completed? What would happen should the wrong person be compensated? A Member questioned whether people could lodge multiple claims, and whether the Committee was aware of the tendency of traditional leaders to sell land to their people.
The Chairperson greeted and welcomed all present. The Committee Secretary apologised for the absence of the Minister and the Deputy Minister. The Chairperson also stated the reasons for the meeting.
Briefing by South African Human Rights Commissione (SAHRC)
Advocate Mohamed Ameermia, Commissioner: South African Human Rights Commission (SAHRC) presented the report. He apologised for the absence of Ms Janet Love, his fellow Commissioner who had prepared the report, as she had fallen ill. A power point presentation was delivered, while hard copies were made available to those present at the meeting.
It was stated that land ownership was a long term conflict. The Restitution Act passed in 1994 and amended in 1998 was highlighted. A progressive realisation of socio-economic rights was important, but the processes relating to land restitution was moving slowly.
The legal framework of land reform and land restitution was highlighted, both nationally and internationally. The Constitution in Section 25, the 1997 White Paper on South African land policy, the Restitution of Land Rights Act 22 of 1994 amended in 1998, and the Restitution of Land Rights Amendment Act 15 of 2014 was noted nationally. Internationally it was noted that the regional Article 14 of the African Charter on Human and Peoples Rights guarantees the right to property.
Special reference was made to certain cases, such as the Richtersveld.
Mr T Mhlongo (DA) asked that the presenter indicate which pages in the report were being referred to.
The Chairperson stated that the presenter had been referring to the page numbers throughout, if the Members had been paying attention.
Advocate Ameermia highlighted the case of the Baphiring community, and the Sophiatown case was another high profile one which had been settled administratively. The Group Areas Act 41 of 1950 and the Group Areas Development Act had been used to remove Africans from Sophiatown. These claimants did not receive just restitution. Those claimants who lost more than one property received compensation equal to the value of their loss. Furthermore, it was noted that the District Six land claims still remained unresolved, while there were also other land claims across the country where resolution had not been reached. Socio-economic rights could not be given to land claimants if they did not yet have land, and South African law should be used as the context for restitution. Oral and written submissions had been received from representatives from different departments and entities. A hearing had been conducted. The participation of the Acting Judge President, as noted in the report, was highlighted. The specific case of the land claim relating to the land on which Cavendish Square was built had been settled financially and had not proceeded to court. The Land Claims Court was a circuit court, and many land claims reached the court without proper preparation.
The Commission tasked with conducting the hearing was independent and impartial while land restitution remained a judicial issue. The backlog of unresolved restitution claims raised concerns. There was satisfaction with the manner in which the procedures had been dealt with in accordance with Article 26 (1) (3) of the SAHRC. Pages 24 to 42 in the report were referred to as the procedures of the Commission.
Advocate Ameermia thanked all those involved in contributing to the report, and also thanked the Committee for the opportunity to present.
The Chairperson thanked the presenter and called upon Members to comment or ask questions.
Mr T Walters (DA) said that many concepts existed, but he wanted to know the perspective of the Commission on restitution. The issue of value determination was also questioned and the presence of a start and end point. The Member also wanted to know about the turnaround time. It appeared that implementation remained problematic, not the legal and constitutional framework. Property rights and full financial rights should also be an objective.
Ms N Magadla (ANC) asked why land claims were unresolved nearly two decades later. How many of the nine findings, as noted in the report, had been solved? Had the price of land remained the same whether in rural or urban areas?
Mr A Madella (ANC) welcomed the presentation and agreed with a previous Member that it provided much to digest. He was concerned that claimants were absent in the actual proceedings, and only respondents seemed to be involved.
Mr Mhlongo questioned whether the recommendations of the Commission were binding.
Mr M Filtane (UDM) indicated that at such an important presentation, the Director-General’s presence was required. The question also included the responsibility of the Department in respect to the report and what was expected constitutionally in terms of the recommendations. The availability of the budget when re-opening these claims was also questioned. The matter would become political.
The Chairperson noted the questions and wanted to know whether the Department had been approached after the report was concluded. The stakeholders consulted were the service providers and not the receivers.
Advocate Ameermia said that if he was unable to answer, he would refer to others for feedback to the Committee at a later stage. The Commission wanted to identify the root cause of the problems and noted among others, a lack of technical expertise, a high turnover of staff and research with institutions like UNISA. The Constitutional Court had already ruled on a fair price in terms of financial compensation of claimants. South Africa had not domesticated the international law, hence the continuous problems. In terms of the SAHRC, the report was to find solutions in the best interest of people and to assist the various stake holders.
The communal land issue indicated that even the Land Claims Court remained challenged with addressing the old claims, and no tension existed between the new and old Act. Every claim would be addressed on merit. In 2014, owing to the elections, challenges existed and various had departments received these reports. On-going monitoring would continue. In terms of the budgetary concerns, Parliament would deal with the matter, but as a Commission, land restitution would be addressed. The law was clear regarding compensation. As noted, a monitoring and evaluation process would proceed and possibly new reports would follow. Regarding new claimants, it should be remembered that claimants were still waiting and would be assisted as all were to receive fair treatment.
Mr P Mnguni (ANC) welcomed the input from all, and said it was understood that the Commission was present to brief the Committee and the need for the Director-General’s presence may not be of such importance at this time. Land had not been taken -- instead there were conquests, as land was forcefully taken through wars. Those who arrived in three ships forcefully took the land from those occupying the land. The property clause protects the land and the battle now fell on the state, yet the land was not taken by the state but rather by the coloniser. What happens when the wrong community or person is compensated, and does a definite timeline exist for these restitutions to be finalised?
Mr E Nchabeleng (ANC) said that land had been taken over a long period of time and was made possible through wars and laws. The struggle continued, and amendments of laws also further institutionalised the land grabs, and this was even made possible by reference to the bible. When referring to the Khoi and San, who were made extinct, an international court would be needed to address the matter.
Mr Walters was concerned by the resourcing of land claims and the process management, and suggested a process expert should possibly be consulted. He said redress was about giving people control over the future. The Committee was dedicated to dealing with injustices of the past and it could not be said that farmers were thieves, as they were legal land owners irrespective of how the land was acquired.
The Chairperson said it was important to discuss the presentation and more meetings with the Commission would follow in future.
Mr Mhlongo said that freedom of expression should be allowed. The report was 12 months old and no feedback had been received earlier.
Mr S Mphethi (PAC) wanted to know whether people could make multiple land claims. There was a tendency among traditional leaders to sell land and he was concerned that people would become poorer, as he was also a traditional leader and aware of this practice.
The Chairperson jokingly asked the Member whether, as a traditional leader, he was selling land. He said further meetings would follow in future while the Committee Members studied the reports in their own time.
Mr Nchabeleng wanted to comment on the statements made.
The Chairperson asked that the Commission be allowed the opportunity to continue and indicated that Members were out of order as they were not given permission to speak.
Mr Mhlongo noted that a visitor in the meeting was continuously commenting. and wanted to know if the gentleman was possibly an Honourable Member.
The Chairperson stated that visitors were allowed only to observe.
Advocate Ameermia said that the country was a constitutional democracy and no community would be deprived.
Mr Mhlongo said that a visitor was taking a photograph.
The Chairperson saidd that no photographs were to be taken.
The visitor said that she had not taken any pictures.
Mr Mphethi said that there was nothing wrong with taking pictures and time was being wasted.
The Chairperson indicated that the Advocate “is still on the floor”.
Advocate Ameermia noted that the financial constraints needed to be addressed to allow for compensation. Depending on the courts’ approach, the outcomes may differ from one community to another. In terms of the Restitution of Land Act, each claim would be addressed separately, irrespective of multiple claims.
Another Commissioner apologised on behalf of the Deputy Land Claims Commissioner, who was attending to business abroad with officials of the Department. The report was being studied, findings had been noted and a strategic plan was being worked on for 2014/15.
The Chairperson said that the Committee was responsible to check whether the recommendations were included in the strategic plan. Challenges should not continue forever. Land restitution was not an event but a process, and if required, the Commission would be invited back. Members should continue to read the report on their own.
Minutes of 12 November 2014
The Chairperson pointed out several grammatical errors, and a need for rephrasing..
Mr Walters noted that in 3.4, business models should be investigated to turn Communal Property Associations (CPAs) into successful ventures. In 3.4.4, “more attention should be placed on supporting CPAs” was the wording needed.
Mr Filtane questioned whether it was the Department or the CPA which was not compliant, as the sentence in 3.3.2 was not clear.
The Chairperson stated that the CPA submits reports to the Department, and then the Department submits the report to the Committee.
Mr M Filtane then questioned whether the Department was corrupt.
The Chairperson said that there was no corruption, but there was a lack of accountability from the CPAs. However, the Department should monitor submission of the reports as being on time.
Mr Mnguni said that the CPAs should not be written with an apostrophe.
The Chairperson called for adoption of the minutes.
Mr Mnguni moved the adoption of the minutes.
Mr Filtane seconded the motion.
The minutes were adopted, with amendments.
Second Phase of Oversight Visit: Northern Cape and Gauteng
The Chairperson asked for an update on the second phase of the oversight visit.
Mr Nchabeleng said that another meeting may not be needed.
The Chairperson said that a decision may still be taken on further meetings.
A member of the Parliamentary Committee staff stated that the theme of the oversight visit was restitution and recapitalisation. The proposed arrival date in Upington was Sunday 23 November, and the visit to a place like Riemvasmaak would be feasible as a number of the issues which the Committee dealt with would be visible there. The Committee would be divided into two teams, and the journey to Kimberley would be by road. On day three, the Committee would fly to Johannesburg.
Mr Nchabeleng indicated that it would be feasible to talk to beneficiaries before meeting with leadership.
Mr Mhlongo said that he supported the previous speaker, but questioned the reasons for not first visiting Pretoria and then moving to Vanderbijl Park.
The Parliamentary Committee staff member noted that the availability of flights should be established. The second day would be a rather full day, filled with farm visits.
Mr Mphethi said that the Committee was taking a chance driving 400 kilometres from Upington to Kimberley, as it was too far.
The Chairperson made a proposal to visit the Kimberley offices to look at projects around these offices, and then have another visit in January 2015 to the Northern Cape.
Mr Mphethi questioned the possibility of accommodation in Kimberley.
Mr Filtane noted that he had no problem in driving long distances, as it was important to experience the hardships of the people.
Mr Mnguni supported the Chairperson by opting for another visit in January 2015. Furthermore, as a politician, he could not state his availability a week in advance. The Chairperson should possibly work with the officials to refine the plan.
The Parliamentary Committee staff member noted that the financial application was still to be finalised so the issue of accommodation was not final yet.
Mr Nchabeleng said that it may be best to start in Upington, as communities in the outlying areas were more in need and on the second visit, areas closer to the city could be visited.
Mr Walters said that he could not join the Committee on 27 and 28 November, but had no problem in driving long distances.
Mr Madella said that on the fourth and fifth days, he would be engaged in by-elections.
The Chairperson said that the first visit would focus on the Northern Cape and the next time, the Committee would visit Kimberley.
Mr Filtane said he may not be able to remain for the full duration of the visit.
The Chairperson asked Members to have their secretaries communicate these matters with the office.
The Parliamentary Committee staff member said that applications were dealt with politically, but each Committee must first approve the finances.
Mr Mhlongo said he did not want history to repeat itself.
The Parliamentary Committee staff member said that the visit had been approved politically, but financial approval was still outstanding.
The Chairperson said the next oversight visit would be from 27 January to 11 February 2015.
Mr Mnguni said that in January, Kwazulu-Natal and the Northern Cape could be visited.
Mr Mhlongo said that he could join the Committee only on 28 January 2015.
Mr Nchabeleng said that the best countries to visit were New Zealand or India, as these countries had good plans in terms of land restitution. African countries to visit could include Zimbabwe and Namibia, which was a country which had already conducted studies. The researchers might need to look into these matters.
The Chairperson stated that the proposals were taken into consideration and models of other countries would be studied.
Mr Filtane jokingly commented that if Members could not spend about four hours in a car, how would they be able cope on board an international flight?
The Chairperson responded that the plane was comfortable, as it had the necessary facilities such as bathrooms.
Mr Mnguni said he did not wish to become involved with administration, but previously he had been required to leave early from a visit as the flights were pre-booked. The previous financial claims were not finalised yet and the system should be workable.
The Chairperson thanked all and added that an approval letter was needed for payment claims.
Ms Magadla said that a change in policy was necessary.
In conclusion, the Chairperson said that the Committee of Chairpersons would address the matter of claims.
The Chairperson adjourned the meeting.
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