Land Rights Management Facility Fourth Quarter 2014 report: Department of Rural Development & Land Reform briefing, with input from Minister

Meeting report

Land Rights Management Facility Fourth Quarter 2014 report: Department of Rural Development and Land Reform briefing

Ms Vuyi Nxosana, Acting Deputy Director General, Department of Rural Development and Land Reform, began the presentation by explaining the complexities pertaining to the collection of information for this briefing. It was very difficult to be absolutely precise when collating information, since the cases starting in one quarter would invariably run over several others, or remain as proceedings in the courts, making it difficult for the Department of Rural Development and Land Reform (DRDLR or the Department) to accurately deal with quarterly budget allocations and expenditures, with the constant spill-over of timelines, dates and disputes.

Ms Nxosana went on to detail the function of the Land Rights Management Facility (LRMF). Its main purpose was to try to resolve disputes, with mediation as a primary tool for such dispute resolution, prior to referring matters to the courts. The work of the LRMF had reflected accurately all the dynamics within the provinces. There were no other dispute formal cases that existed outside of the listing, although it did not necessarily cover every possible dispute, but only the cases that were actually reported to the LRMF.

She expanded that when disputes could not be solved through mediation processes or when mediation processes have failed to produce desired outcomes for citizens and land owners alike, they were then referred to the legal system. Ms Nxosana noted that there were around 740 pending legal matters. The reason for the apparent discrepancy between the cases noted as under mediation and the cases in the courts was due to the fact that it took a longer time to have the cases finalised in the courts.

She detailed the various categories of dispute highlighted on Slide 9 (see attached presentation for full details) and stated that the term ‘Illegal eviction’ referred to cases in which land owners embarked on evicting tenants without following due process. The term ‘Burial Rights Dispute’ made reference to cases in which persons have been told that they are not permitted to bury persons on particular land. Currently, evictions-related cases reflected the largest number, at 55% overall. Ms Nxosana explained that these figures had nothing to do with how panellists were handling situations, but had everything to do with the legal system. There was a high success rate of cases solved through mediation provided by the LRMF. The legal management provided by the LRMF was succeeding at representing those who would otherwise have been evicted illegally. Ms Nxosana stated that the Labour Court and disputes referred to it by the LRMF would be brought into play only after there had been prior attempts to settle the matters through mediation, in the same way as land disputes were approached.

She briefed the Committee on the financial figures. The Contingency Liability Assessment on Slide 17 set out figures that reflected expenditure not fully foreseen in the event of conducting disputes through legal means, specifically referring to the matters that remained pending in court.  Ms Nxosana reiterated that neither the Department of Rural Development and Land Reform nor the LRMF had any control of the expenditure of matters when they were redirected back into the legal system. The figures represented how much the DRDLR estimated it might approximately cost to close matters currently pending in court.

The briefing given was comprised of information spanning over the period of December to March. Income was given as R135 591 224 with an expenditure of R122 383 833 and a balance of R14 347  943.

Ms Nxosana spoke on the changes that were to be made to the structures within the Department of Rural Development and Land Reform, following the implementation of the Extension of Security of Tenure Amendment Bill. There would be a Land Rights Management Board that would ensure that management of related affairs would be set up and accessible for both the local and provincial levels of the state. This would allow for the formulation of local solutions and would also ensure that local citizens were not faced with representation by external mediators who were not aware of the logistics and context of their clients' claims in the mediation processes. When the Bill was passed, it was expected that the work of the Land Rights Management Facility would be taken over and supervised by the Land Rights Management Board.

Mr K Mashigo-Dlamini, Deputy Minister of Rural Development and Land Reform, stated that the Department would provide the breakdown of the actual figures per province so that the Committee could get a better picture of the trends, and would also be able to see the percentages of most common cases brought to the LRMF. He reiterated that the figures in this presentation reflected the cases that were reported to the LRMF, and this was not to say that there might not be other existing disputes. To respond to this particular challenge, the DRDLR had implemented an eviction monitoring system, comprising NGOS that were land-rights based organisations, police services and agricultural unions. Their eviction monitoring system provided reports on incidences on the ground, and would monitor and report these occurrences where civilians were unable to do so.

Ms Nxosana added that the Department was also attempting to revive these structures in the hotspot provinces (KwaZulu-Natal, the Western Cape and Mpumalanga), so that there was better collection of intelligence on what was actually happening on the ground. KwaZulu-Natal had the largest number of cases brought forward to the LRMF, and a quarter of the cases within this province (with similar trends also apparent in other provinces) pertained to cases about evictions. This clearly illustrated that evictions are still a big issue in South Africa.

Discussion

Mr M Filtane (UDM) stated emphatically that this was a long-awaited venture finally being embarked upon by the LRMF, and was very long overdue. The information now given by the Department gave the Committee a real sense of what had been happening on the ground, and it would finally be able to address the long periods of suffering endured by civilians in these disputes in remote areas, who were faced with evictions after years and years of working hard on the farms. This initiative was definitely a step in the right direction and he expressed appreciation of the work that was being done and ensuring that the Department is providing the services intended.

Mr Filtane asked what progress had been made in attending to cases that were highlighted in the last quarterly report. He asked how many of the pending cases - percentage - wise, the Department usually managed to finalise each quarter. He was aware of the disclaimer provided at the outset but said that he would like to get some indication of the success rate. He also questioned what was considered to be a good success rate, specifically those decisions in favour of tenants from the cases that had been closed.  He also wanted to know where the mediators were based - whether within the LRMF, or if they were contracted from law firms. He pointed out that it cost far more to go to court than to mediate.

Mr T Mhlongo (DA) asked that the presenters give a provincial breakdown of the finances when providing a financial statement, to make it easier for the Committee to see what the Department and LRMF were doing to address challenges in particular areas. He questioned whether there had been any change in the technology, so that it might be possible to access the toll-free number from cell phones as well as a public telephone, and asked whether the DRDLR has made any approaches to the cell phone network providers to negotiate this change.

Mr T Walters (DA) said he would not repeat concerns that he had set out previously. He was concerned about Slide 10. The spreadsheet of pending legal matters across the country also reflected the reporting rate for disputes. The Committee needed to be cognisant of reporting and the processing of information. In future, he would like to see specific detail on whatever constraints there might be in processing cases, and what challenges were experienced by those reporting information. He said that some of the concerns had been presented in the previous meeting. He thought that there was a major issue with the processing of information on legal matters. The Executive arm of the State was moving into the work of the judicial function of the state, and this was apparent with the LRMF. This Committee was supposed to deal with policy and reform, but the mandates of the Committee and the Department had been blurred. Mr Walters questioned to what extent the Department was liaising with other institutions and bodies, with regards to collaborating work on the National Development Plan.

Ms A Qikane (ANC) asked for an explanation on the high numbers for "pending" legal matters, since project finances had been allocated to deal with these.

Mr A Madella (ANC) welcomed this report and echoed concerns about the possibility of under-reporting. He referred to recent incidents of farm workers striking in the Western Cape and noted that the cause might be linked to disputes that were not reported or accurately attended to. Mr Madella noted that there was a possibility that the under-reporting was due to people not knowing what avenues to seek when reporting cases of evictions and disputes, and therefore enquired what the Department’s marketing division was doing to inform people of its services. Mr Madella also raised questions around Slide 14, and asked where the opening balance of R1.140 million was derived.

Mr E Nchabeleng (ANC) stated that the presentation was well-compiled and informative. He said that it showed that the Committee and Department were well-aligned and moving forward. He also wanted to emphasise the role of civil society in these matters, and made the point that not all lawyers were well-equipped when it came to matters of land disputes. All collaborative bodies reporting to the Committee need to be ‘spot on’ regarding these matters and not assume that services being provided by lawyers were necessarily of the high standard required. Similarly, the Department should be wary of entrusting its work to just any NGO - there had to be a procedure followed in all cases to ensure that civilians were indeed actually receiving quality assistance, and that checking quality was a very important feature.

Mr P Mnguni (ANC) was aware of the difficulties experienced in compiling the report, due to the overlapping of deadlines and budgets, but remained unimpressed by the fact that the Department had not proposed any way to combat this and try to ensure more accurate reporting to the Committee; he wanted to suggest that the report could indeed be further broken down so that the Committee could get more accurate figures on record, to which it could respond. He also questioned what the differences were between the current report, and the one prior to that, and to what extent information had been carried forward from the one report to the other. Very little was conveyed in this briefing as to what the Committee might need to specifically note, in terms of moving forward. There was also no interpretation of the statistics and figures, nor were any objectives identified to improve these figures. He agreed with the questions asked by Mr Filtane, and asked also what the DRDLR would do in respect of citizens who had lost their cases because of administrative complexities.

Mr Mnguni also made the point that the Department was reporting on the high incidents of evictions, but had not mentioned whether it was trying to do anything to reduce those instances and reduce the prevalence of the problems. He also made the point that no gender breakdowns for the figures were provided; this would have made the reporting more comprehensive. He also cited a particular month in which the expenditure had been R9 million, and asked why this was so high for this month and how the money had been spent.

Ms Nxosana: welcomed the questions and oversight played by the Committee. She was gratified by the remarks that the work of the LRMF was seen as a positive contribution. She would answer as many of the questions now, in the meeting, but the more detailed financial information would be sent on, in writing, after the meeting.

She noted that the work of the LRMF actually arose as a result of the legislation, and the mandate assigned to the LRMF was driven by the court-work. Speaking to the points made by Mr Walters, she agreed that it was difficult to separate the executive function of the state from the judicial function, given the legal mandate of the body.

Ms Nxosana reiterated that many of the labour cases had begun at the mediation stage, but were transformed into full-blown legal matters. At the end of the day, she agreed that the Portfolio Committee and Department, in conjunction, should be seeking the root causes of these issues. She urged the Committee not to become too distracted by the work done by the LRMF, and not regard it as the only solution to managing the issues.

She made the point that the data provided in the report was correct, according to the numbers of cases brought to the LRMF. She accepted the critique that Mr Mnguni had given and said that the briefing should reflect more narrative descriptions.

In relation to the question on what the Department could do if any cases were lost due to administrative procedures, she pointed out that there were logistical difficulties in tracing such instances. There were stories that farm workers had been intimidated, or even abducted and moved to different provinces in an attempt to disrupt mediation and legal processes. The Department had no way of combating these kinds of actions, if they were taking place. The most beneficial thing that the State could do would be to provide tenure security, so that the State would not be faced with the added problem of trying to find citizens in order to complete the processes. Many of the people complaining that they had been evicted were now living in informal settlements and the emphasis should therefore be how to provide them with security of tenure.

Ms Nxosana stated that in relation to liaising with other institutions and bodies involved in the work done by the LRMF, the Department of Justice and Constitutional Development had a different model of operating, which could not fully be harmonised with that of the Department of Rural Development and Land Reform when the two departments communicated. Justice centres were hardly able to facilitate the cases referred to them by the LRMF, especially within certain time frames, and legal aid funding was not given for civil matters. Many of the court matters funded were linked to criminal matters. She pointed out that many of those in remoter areas found access to courts to be problematic, and this impacted on the finalisation of matters. This was particularly why amendments were being made at the local policy level, to deal with the complexity of the courts processing of issues, and provision did need to be made for civil matters in courts.

Ms Nxosana confirmed that written explanations and breakdown of expenditure would be provided to the Committee in respect of the figures questioned by Members. The expenditure projections were largely reflective of the mid-year position, not an end of year final analysis. She pointed out that the Department would have to ensure that sufficient funds were available throughout the year.

She said that the Extension of Security of Tenure  Amendment Bill would stipulate the function of the board that is to replace the LRMF, and would address largely the issues that had been raised in the briefing. The new board will not function like the Ingonyama Trust Board, but would rather act as an advisory board, advising the Minister on possible strategies to combat these issues, and how the response of the Department should be designed. She stated that one of the biggest issues experienced by the DRDLR was its lack, to date, of an information-sustaining portal. The Department had been addressing the issues of collating information.

She confirmed that there would be ongoing attempts to inform and educate people about the services the facility had to offer.

She reiterated that the decision to take matters through to court was not something over which the LRMF had any control. Complainants who wished, despite mediation, to take the matter to court had the right to do so. She agreed with the need to find a way to report the information timeously, and within the allocated time-period, to avoid any delayed issues re-presenting themselves in subsequent briefings.

Mr Jomo Ntuli, Director, DRDLR, answered the question on the peak in expenditure and said that this was due to the fact that in November / December each year, companies wanted to close off their books and therefore requested payments from the government in terms of tender processes. Much of the expenditure on pending court cases was due to the fact that land owners used the high court costs either to try to intimidate complainants to drop their claims, or claim more funding for legal fees, because of the nature of the compensation allowed for. Disputes were indeed more costly to resolve in court.

Mr Ntuli said that the question of accessing the toll-free line via cellphone remained unresolved. Although the Department had tried to engage with the service providers, they continued to want to make a profit from the number.

Mr Gugile Nkwinti, Minister of Rural Development and Land Reform, noted that the issue of establishing tenure security was a politically sensitive matter, due to the historical developments that emerged between members of the Democratic Alliance and the African National Congress, and certain practices that were found to be unethical. The Department had been attempting to introduce a land tenure model. The Department would be holding further consultative meetings in the following week and an invitation would be extended to Members of this Committee to debate these issues on a different platform.

Mr Walters asked whether the Committee could keep a better record of the questions asked of delegates from departments in the meetings; many of the issues kept being asked again. He was also still unhappy about the mandate of this Committee being conflated with justice processes, and pointed out that since there were separate divisions of the governance system, one should not be brought into the other. This was despite the explanation provided on the LRMF mandate.

Mr T Mhlongo (DA) asked where the call centres were located and whether the Department had personnel who spoke all official languages in the country

Ms Nxosana stated that the Department did indeed have a call centre, manned by people who, between them, spoke all the languages of the country.

Mr Ntuli noted that the Head of the Call Centre was located in Pretoria, but it had outreach to all areas of the country. He confirmed, in answer to a follow up question from the Chairperson, that there were not provincially-located call centres.

Minister Nkwinti stated that the amendments to the Community Property Association Act were introduced by the Department, partly to counteract some of the issues raised today. The Community Property Associations tended to have a problem with structural processes. Unless there were re-election processes, the perception remained that many of them would exist without any limitation on time, and no turnover processes, and this led to complacency and delay in the provision of reporting systems and service delivery. Mr Nkwinti stated that the Department was not drifting from the core mandate of the Committee at all, as the DRDLR was still being asked very relevant questions as part of the oversight by the Committee. The same critiques raised here were also being raised by the Portfolio Committee on Justice and Constitutional Development. The Department was, however, attempting to move away from the position where all disputes were automatically referred to the courts, and felt that the courts should be used as a means of last resort. This was not only so in principle, but also because there was he court should be used as a means of last resort. Not only as a principle, but also due as there is a competition for resources between state bodies.

The Chairperson reminded the presenters to send through the written responses and thanked them.

Other business
Adoption of Committee Minutes
The Committee went through the draft minutes and adopted them, with no changes.

Provision of supporting material
Mr Waters requested that other bodies dealing with the making of legislation that affected the DRDLR should be asked to provide slides and draft minutes, to give this Committee more background information.

The meeting was adjourned.