Department of Rural Development and Land Reform response to South African Human Rights Commission recommendations, with Deputy Minister in attendance

Meeting report

The Chairperson welcomed Ms C Mashego-Dlamini, Deputy Minister of Rural Development and Land Reform; Mr Mcebisi Skwatcha, Deputy Minister of Rural Development and Land Reform, and officials from the Department and the Commission. The Minister was attending to other important commitments. An apology was received from Mr Mduduzi Shabane, Director General.

Department briefing

Ms Mashego Dlamini said her Department had come with the Commission on Restitution of Land Reform (Commission) to brief the Committee on responses to the South African Human Rights Commission (SAHRC) findings on systematic challenges affecting land restitution in South Africa. She apologised on behalf of the Minister and noted that the Minister might be arriving late.

Mr Thami Mdonstwa, Deputy Commissioner: Commission on Restitution of Land Reform, focused on a summary of the findings of the SAHRC, strategic plan of the Commission, response on each finding and recommendations of the SAHRC. The SAHRC conducted an investigation in November and December 2013 on systematic challenges affecting the land restitution process in South Africa. Its report, entitled “Report of the SAHRC Investigative Hearing: Monitoring and Investigating the Systematic Challenges Affecting the Land Restitution Process in South Africa,” was published on 30 July 2014. Various findings were made and a report in this regard was presented to the Committee on 19 November 2014. The SAHRC report made recommendations that were similar to those of the Department of Performance Monitoring and Evaluation (DPME) in its evaluation of the restitution programme. The purpose of the DPME evaluation was to assess whether the restitution programme had been implemented efficiently and effectively, and to identify how the programme can be improved in time for the next phase of the restitution process. The findings and recommendations of the both the SAHRC and DPME reports informed the Strategic Plan of the Commission for the period of 2015-2020.

Mr Mdonstwa noted 14 SAHRC findings and recommendations. They were as follows:

1. The Commission was understaffed, lacked technical skills and had inadequate research capacity.
2. The role of the Commission was not clear – because the Commission was impartial to and independent of the Department.
3. The Commission had a poor research methodology.
4. The Commission had difficulties on the recording and capturing of current claims as a result of documents and files being lost.
5. The Commission did not address losses faced by communities from their exclusion from benefiting from mineral resources in and under their land;
6. Restitution was a judicial process and could not be contingent on the Department policies that undermine the need for just and equitable remedy of past rights violations as envisaged in the Constitution.
7. The backlog of unresolved restitution claims raises concerns that claims filed under the new restitution period might further undermine fulfilment of existing claims.
8. Significant challenges in relation to the calculations and determination of value of land from which individuals and communities were historically dispossessed, but which it had to be seen in the context of subsequent developments and uses.
9. Absence of capacity with the Chief Surveyor General to do historical research work, to provide complete register of all land owned by different spheres of government and parastatals to help communities develop plans for the future.
10. The cadastral surveys of million hectares of land have not been undertaken and the plans and resources necessary for that did not appear to be in place. Sub-divisions and title deeds had not been finalised and registered.
11. The additional period for submission of claims may create a possible resurgence of new land claims, with the Department expecting approximately 397 000 claims.
12. New claims will undermine the backlog of unresolved claims.
13. The Amendment Act opened a space for claims by traditional leaders to clash with existing community-constituted structures.
14. The Amendment Act would also open the space for claims, for example by traditional leaders, which might be in conflict with existing claims by other community-constituted structures. In addition, the Act intended to ban communal property institution from owning redistributed land. This removed an option to existing claimants without their occurrence.

The Strategic Plan 2015-2020 set out a programme to improve the efficacy of the Commission’s operations; the pace of the settlement of claims; and the quality of those settlements. As a part of business unusual the Commission would particularly ensure a continued focus on:

• Speedy investigation and finalisation of claims lodged before 1998 cut-off date;
• Improvement of its communication with all stakeholders, particularly, those who claimed land before 1998 cut-off date, using new technologies;
• Improvement of the quality of settlements; and
• Definition of the role of sector departments and other spheres of government in development projects resulting for the settlement of claims.

The Strategic Plan 2015-2020 was set out to achieve three main goals, including restoration of land rights in order to support land reform and agrarian transformation by 2020; lodgement of restitution land claims re-opened for people who did not meet the 1998 deadline and organisational change management. Six strategic objectives to achieve the said goals were underscored.

Mr Mdonstwa shed more light on the Strategic Plan 2015-2020 in terms of its strategies, structure, systems, shared values, style, staff and skills. He highlighted responses to the SAHRC findings and recommendations (see attachment).

Mr Mdonstwa concluded by providing a roadmap on how the Commission would become autonomous and dependent of the Department. It would be listed as a public entity in terms of the Public Finance and Management Act. He apologised for briefing the Committee on the inserted roadmap slide – the last slide – which was added on the presentation after the presentation was sent to the Committee. On the document handed out the part of roadmap relating to autonomy as a public entity was missing.

That caused a bit of commotion. Members, especially, Mr T Mhlongo (DA); T Walters (DA) and M Filtane (UDM) were unhappy with the inserted slide and argued that the Department/Commission was reckless to share with the Committee an uncompleted presentation document.

The Chairperson intervened. With her intervention, it was agreed that the last slide be sent to all members immediately after the closure of the meeting thereof.

Discussion

The Chairperson was happy with the roadmap that was inserted as the last slide. She reiterated that a complete presentation be sent to the Committee.

Mr Walters, referring to response to recommendation one, remarked that the Commission should look beyond the target of the Annual Performance Plan (APP) for 2014/15, which was 1445 claims. The APP did not appear as a response to recommendation. The SAHRC noted the issue of non-impartiality and independence of the Department and the presentation did not adequately touch on how that issue would be resolved. Generally, the presentation did not speak about the issues raised by the SAHRC’s report. Rather, it focused on administrative matter related to accountability, an independent structure, independent finances, and independent audit. These matters were crucial but did not respond to the SAHRC recommendations. Impartiality should also speak to who should be appointed and how should the candidate be appointed, especially in the land matters adjudication. How were judge appointed? The presentation was confusing two things: the judicial process and the administrative process. The Commission should focus on impartiality of its judiciary.

In terms of capturing and recording, Mr Walters sought clarity on what the real problem was because, to him, the manner in which data was being captured was recommendable. Without quantifying what the problem was, it would be difficult to find a solution. There was improvement in lodging of claims with the Commission.

On the issue of mineral rights, he supported the response given. The question was how such rights be incorporated in the process of lodging claims.

On recommendation six, Mr Walters sought clarity on how the Commission intended to ensure that the judicial process was fair and impartial and, in that case, it acted without the state interference.

With regards to response to recommendation seven, Mr Walters sought clarity on how the backlog of unresolved claims would be dealt with. There seemed to be a management crisis and, for that reason, the backlog problem would never be resolved. When the Department previously briefed the Committee, it stated that the backlog was not a serious issue to evade some questions being posed. How would the Commission deal with new claims with a huge backlog at hand?

With regard to the response to recommendation eight, Mr Walters sought clarity on what the phrase “in the context of subsequent developments and uses” meant.

With regards to response to recommendation nine, Mr Walters sought clarity on the State Land Audit and remarked that the claimants’ land ownership problem was understated.

With regards to the Commission’s roadmap to autonomy, Mr Walters agreed with the Commission’s concerns. However, what can be inferred from the SAHRC’s report was that the Restitution of Land Rights Act 22 of 1994 was quickly pushed into Parliament and no time was allocated to study its future repercussions. The Commission was suffering from that misstate. That mistake could not be repeated. The new turn that the Commission was seeking to take should be approached carefully.

Mr Mhlongo, referring to slide 15, sought clarity on the Commission staff complement in relation to understaffed problem. He asked how far the process was, and sought further clarity on the issue of non-impartiality. The Department ought to ensure the IT was an independent entity. Was this going to take six months or 12 months? The timeframe of the Commission to become an independent entity remained unclear. Referring on slide 21, he requested the Committee to unpack further the implications for the 2533 claim forms at the negotiation stage. He raised concerns about lost claims and sought clarity on whether they were included in the number of 2533 and overall outstanding claims of 8035. If lost claims were not included in these figures, what was the Department doing about it? How did the Department intended to settle the 2533 claims?

Mr Mhlongo was of the view that the Land Audit was needed. He asked whether an agreement with researchers should be availed to the Committee.

Mr S Matiase (EFF) welcomed the findings of the SAHRC and remarked that although that the research was flawed in its nature it revealed important points. He suggested that the Committee should not take the SAHRC seriously. Rather, the Commission should launch a new private investigation not based on bureaucracy. Shortfalls of the report included its failure to conduct human rights violations and the question of whether there was a political will to distribute the land and what the political challenges to distribute the land to the people were. When he conducted an oversight to the Eastern Cape, he found that people held the perception that the ANC government looks like a roaster who is afraid of a hawk (he said this in isiXhosa, and then translated in English). That denoted that the ANC government was afraid to distribute land because it was afraid of whites and their white-oriented-monopolised capital.

Mr Walters and Mr Mhlongo called for a point of order. They stated that the ANC government were not afraid of white people. Mr Walters asked whether the Chairperson was afraid of him.

The Chairperson responded that she was not afraid of him and requested Mr Matiase to retract his statement.

Mr Matiase nodded. He stated that the SAHRC’s report revealed 14 important points that could be looked to enhance capacity of the Commission to meet its mandate.

Mr Matiase suggested that amendments of sections 25(7) & 25(5) which, in his view, acted as a bar to full realisation of ownership. He said the apartheid regime had distorted the history and it was wrong to rely on documents to redress the injustices of the past. The Commission should consider hearing oral testimonies.

Referring to the recommendation 13, read in conjunction with slide 28, Mr Matiase sought clarity on why there was no response to it. Referring to recommendation 14, he raised concern about community property, stating that the Amendment Act would have an implication of limiting the community to organise into a juristic person and to claim restitution of their land. It was incumbent upon Parliament to adopt, apply and execute legislation consistently so that there could be no mishap. He sought clarity on why the land claim was limited to 1913. Was it due to the Act of 1913? The cutting-off date deprived certain indigenous people, for example Khoisan from claiming land.

Mr Matiase felt that a feedback on the number of claims that had been settled case by case and on the issue of land addressed through land redistribution ought to be prepared and submitted to the Committee. It should contain information on the piece of land that had been secured, acquired, and sold. On the willing seller and willing buyer approach towards redressing land injustice, he sought clarity on how many pieces of land were sold and how much was raised.

The Chairperson interjected. She said that the issues raised were not related to the issues being considered. These issues were dealt with in the Department’s brief on the APP and quarterly report. Concerns ought to be limited to the findings and recommendations of the SAHRC.

Mr Filtane remarked that the issue of land restitution had become a hot potato. He reminded the Committee that he was a member of the Portfolio Committee on Public Works and that this Committee dealt with a piece of legislation on appropriation which also dealt with land matters. He pointed out to lack of collaboration between committees resulting in complicating solutions of land claims. He suggested that all Committees working on land issues should work together.

Referring to slide 9, Mr Filtane sought clarity on what “the speedy investigation and finalisation of claims lodged before 1998 cut-off date” meant. He found the Strategic Plan 2015-2020 less convincing. How would it be achieved without enough staff and adequate research capacity? How did the Commission intend to go about it? Referring to slide 15, there were too few managers to run projects from start to finish. How many staff would be needed to ensure human resource capacity to run projects effectively? How were services spilt among service providers?

Referring to slide 25, Mr Filtane appreciated judgment in the case of Florence v Government of the Republic of South Africa (CCT 127/13) [2014] ZACC 22. He sought clarity on whether the case was dealing with issues of land or its development and fiscal matters involved. Did the use of the Consumer Price Index (CPI) apply only to land or its development or both?

Ms A Qikani (ANC) sought clarity on a land claim lodged by two brothers.

Mr E Nchabeleng (ANC) suggested Mr Matiase attend all meetings so as to be kept informed. He appealed to the Department to submit documents in which the EFF could find answers. The issue raised by Mr Filtane was relevant. The Committee was not liasing with other committees, in particular the Portfolio Committee on Public Works, which was not aware of what was happening there. This Committee was responsible for land; nothing related to land should be discussed without information. That approach could avoid unnecessary conflict. He raised concern about leadership style. Staff might not be delivering because of insecurity caused by a need for a radical move to become an independent entity and might fear losing their positions. The Commission should work to ensure security of its staff by enhancing a sense of ownership for them to be more productive; perhaps there was a challenge of lack of morale. Morale should be at the heart of both Department and Commission.

Mr A Madella (ANC) welcomed both the findings and recommendations of the SAHRC and presentation of the Commission. He agreed that the issue of morale was a matter of concern. Lack of morale could affect service delivery and rendering delivery of services uncertain. That would include the future of the Commission as an independent entity. How many vacancies were available? What was the timeframe to fill the vacancies? Why was there no good communications with the stakeholders? How did the Commission deal with the claimants who lodged claims in the pre or post 1998 cut-off date? How did the Commission deal with the lost claims?

Mr PJ Mnguni (ANC) sought clarity on whether the SAHRC was present and if not, why the Committee could consider its findings and recommendations in its absence. It was desirable to deal with the systematic challenges faced by the Commission in the presence of the SAHRC – because there were certain unclear issue that could be made clearer by the SAHRC. For example, why the SAHRC, which was mandated to protect humanity, could suggest something like – reopening claims would prejudice the existing claims – and thus preferring to discriminate against others. It should have suggested an inclusive approach. The Committee should not support a discriminatory approach rather it should support an inclusive one. Reopening of land claims should be supported. With regard to service provision, he sought clarity on why the Commission was not using an in-house research system. Though research should be academic-based, the research team should be composed of people with proven research capacity and should use an in-house model. On the issue of the 1913 cut-off date, the date was critical. Though the removal and dispossession legislation were adopted as from 1913, informal dispossession of land took place prior to that land. The pertinent question was: how should the legacy of colonial war be reversed? The issue was raised by the EFF because it felt that the ANC was not doing enough; the EFF should commission a research project to find how such legacy could be responded to.

Mr Matiase called for a point of order and asked for a withdrawal of remarks by the EFF.

The Chairperson said that the comments were withdrawn.

Mr Mnguni noted that the year of 1913 was very important in the history of land dispossession. What happened in 1913 and thereafter could be determined on the basis of a particular legislation.

Mr Mnguni sought clarity on the issue of legality of findings and recommendations. Was it possible for a Commission to investigate another Commission? Which commission had jurisdiction to investigate other Commissions? In principle, should not Commissions have to collaborate among themselves? What was the legal weight to be attached on the report? What was the view of the Commission on the service delivery model? Whose philosopher do you refer to in developing a public administrative model?

Ms Mashego-Dlamini welcomed comments, concerns and questions raised by Members. The SAHRC, in its report, did not deal with abuses of human rights; rather it dealt with administrative process. The investigations were encouraged by complaints filed with it. The Department usually admired the work of the SAHRC and respected it as a Chapter 9 institution. It played a major role in South African transformation. The Department was happy with the findings and recommendations of the SAHRC.

The Department did not have a problem with a Commission to investigate another Commission.

On the issue of autonomy, the Department would be releasing the Commission to become a public entity but it would not stood as a Schedule 2 entity that receives finances direct from the state.

On the issue of amending sections 25(5) and (25(7) of the Constitution, that the EFF were using the amendment of the provisions issues as a vehicle for a political campaign. It had been boasting that it would campaign for amendment of the property provision until it had the required votes in Parliament to amend it. The Department was not ready to amend to the property clause.

On the Eastern Cape people’s perception, Mr Matiase should go back and research the views of people on how land was being distributed, not just certain people who met with him.

On the issue of the Communal Property Institutions, these institutions were juristic persons and the Department was also working through presentations. If people come together and claim land that was under traditional leadership, it could not be restituted because such land was under trust. On the issue of land being claimed by two or more people, land could be claimed per household but not by an individual.

On the issue of land acquisition Mr Matiase should consult the documents forwarded to Members, especially the quarterly report, for the information he was looking for. She was willing to answers questions for clarity from these documents.

Ms Mashego-Dlamini agreed that there should be collaboration between Committees, especially on the matter of appropriation.

On the issue of filling vacancies, the Commission was still being structured. The organogram of the Commission as a public entity was under consideration. That made it difficult to provide the figure of staff needed and when all vacancies would be filled.

Mr Skwatcha, responding to the commotion caused by Mr Mhlongo, stated that that attitude was unnecessary because Mr Mdonstwa tended an apology. He noted the suggestion of Filtane that land claims should consider all claims equitably.

On the political concerns raised by Matiase, administration processes were too informed by politics. The dispossession of land was effected through administrative actions. A similar approach had to be used to redress the imbalances caused by the injustices of the past. In so doing, the Department considered decisions that were taken which could be traced back to 1913. He reminded Mr Matiase that South Africa belonged to all – black and white. Whites were South African too. It was imperative to approach the issue of land thoroughly and holistically. The democratic government could not afford to be reckless in approaching the land restitution.

Ms Mashego-Dlamini stated that the State Land Audit report had shown that 78% was private-owned land. However, a regulating legislation was needed to ensure that ownership was gender and racial neutral.

Mr Skwatcha added that the Department was happy with the pace of transformation.

Ms Mthembu Sikhutshwa, PLO, Department of Rural Development and Land Reform, said the Department did not get opportunity to answer to certain matters before the release of the report. An investigative team commissioned by the President raised similar concerns raised in the report. These concerns were no small matter; they were titanic. However, the Department was doing its best to ensure that these systematic challenges were resolved. They were not issues that could be resolved within two months. The findings and recommendations gave an opportunity to the Department to correct their approaches. The autonomy approach should be supported, as this would introduce new approaches towards achievement of mandates. The Department would provide a guideline on how it was going to improve the entity to deliver. The Strategic Plan 2015-2020 was about being realistic on what the Department was going to do and the rationale behind briefing was not just to appease the Committee.

On the filing of the claims, the old system to deal with claims was used. The Department did not want to contaminate the old claims by dealing with new ones. The Commission received 57 000 claims.

With regard to morale, Ms Sikhutshwa said that the employees’ positions were secured. They would not be affected by the change in the legal status. Employees were doing their best, for example, the Free State only had seven few outstanding claims.

With regard to IT, the person who was programming IT was an intern from Belgium. The history of dispossession would be made available so that the Commission would be able to accept or reject a claim. The improvement of IT was viewed in a perspective of availing information to researchers.

Ms Sikhutshwa affirmed that there were effective communications concerning claimants.

On the issues of in-house research projects, the Commission was challenged on the issue of research. The concerns about having an in-house research was supported but the Department opted to go outside and discuss the matter in depth because of the urgency and demands.

Mr Mdonstwa stated that research was imperative to determine whether claimants had mining rights before dispossession of land. Yet, there was an issue of compensation. In that respect, an assessor was appointed to determine whether compensation was just and equitable. Value was determined based on historical facts.

Mr Matiase reiterated that the SAHRC failed to talk about human rights violations. The Committee should propose a comprehensive, broader, and inclusive investigation that would touch on restitution, tenure, and redistribution.

Mr Mhlongo sought clarity on how the Committee was stating that certain cases were finalised and sought clarity on how they could be finalised without paying compensation.

Mr Walters remarked that the report should not be taken seriously because it focused on administrative problems instead of matters affecting rights of claimants. He had no problem with the matter of a Commission investigating another commission

Mr Walters said the DA disagreed with the EFF model of distribution but it acknowledged that land redistribution was a major problem. Difference should be drawn between restitution and distribution on the one hand and tenure and restitution.

Mr Nchabeleng said that the issue of impartiality permeated all institutions. For example, the SAHRC was impartial in the sense of defending the victims of human rights abuses but not the perpetrators. Impartiality was not a problem.

Mr Mnguni stated that the issue of equality was not possible, rather land matters should be looked at and the investigation raised by Matiase should be placed in pending. Slide 6, SAHRC was out of order from an equity perspective. The issue of backlog could not be used to deprive others human beings of their human rights.

Mr Skwatcha stated that he Department took the report seriously but Chapter 9 institutions were not God, and supported the reopening of cases. Why were certain matters redressed and others excluded?

Ms Sikhutshwa explained that research could only take place when a land claim was in process. Research was crucial to determine whether a piece of land belonged to the person claiming it. Members ought to differentiate between losing records on the system (but claimant had his or her case/reference number) and losing a claim. Those whose records could not be found in the system, but had reference/case numbers, were given an opportunity to lodge their claims de nevo.

The Chairperson thanked Deputies for shedding more clarity on unclear matters. She remarked that the Committee should be updated on progress of the claims. The Committee too respected the Chapter 9 institutions and that was why the Department was called.

Adoption of minutes

Minutes of Committee meeting held on 20 May 2015 were considered and adopted with minor amendment.