Spatial Planning Land Use Management Act implementation; Rama and Riemvasmaak challenges: Department progress report; Committee Oversight Visit Report

Meeting report

Opening Remarks by Chairperson

The Chairperson reminded the Department of Rural Development and Land Reform (DRDLR) that this was the second meeting dealing with the Rama and Riemvasmaak communities. The background to the matter had been presented to the Committee at the first meeting, and the purpose of the present one was to receive a progress report on how far the Department had intervened and assisted the beneficiaries in getting payments.

Progress with intervention to address challenges faced by Rama.

Mr Jeff Sebape: Director: Communal Property Institutions, DRDLR, said the Rama Communal Property Association (CPA) members had lodged a restitution claim which had been settled in 2002. Two farms -- portion 2 of Wildebeeshoek 309 JR and the remaining extent of Kafferskraal 308 JR -- had been acquired by the claimants. The farms were 754 hectares in extent and had been acquired for R15 087 952. A CPA had been registered in 2002 to acquire, hold and manage the land on behalf of the claimants. The CPA had initiated some income generating activities on its land, which included a quarry business, and had started a museum and an entertainment centre that featured a cinema. In partnership with the Tshwane Metropolitan Municipality and private investors the CPA was in the process of developing houses on its land.

The Rural Land Claims Commissioner (RLCC) had tried unsuccessfully to intervene in this CPA but due to the failure of mediation, the RLCC had instituted proceedings to place the CPA under administration.The application had been unsuccessful on the grounds of locus standi, and it was noted that new proceedings by the Department aiming at placing the CPA under administration had been instituted in the Northern Gauteng high court. A rule nisi order had been granted, requiring the CPA to hand its books over to the Department.

When Rama was registered as a CPA in 2002, it had elected eight people to sit on the Committee for a term of five years, which expired on 23 May 2007. When the land was acquired, there was an operational quarry which was still operating, and was the main income earner for the CPA.

The challenges were that the CPA Committee’s term of office had expired, and reports had not been submitted to the Director General (DG); there was development happening on CPA land without the mandate of the members; a Committee member had been killed; and there were allegations of misappropriation of funds by the Committee. An order instructing the CPA to hand over its books to auditors had limitations.

Currently, the Department was working on four methods of intervention in this CPA:

1. Criminal Cases

Two meetings had been held with the SAPS (Hawks) to report and discuss the various activities that had taken place within the CPA that warranted the attention of the police. Some supporting documents had been requested by the Hawks and the DRDLR was assisting the community to submit those documents. The Hawks were looking at the murder cases and possible fraud and corruption cases. The last meeting with the Hawks had been postponed because CPA members had failed to submit all documents involved in the allegations of misappropriation of funds, intimidation and murder to the Hawks.

2. Civil Case

The Department had now filed its replying affidavit on 30 June 2015. Heads of argument had also been filed and the Department was waiting for the respondent to file its heads.The State Attorney had now indicated that he would apply for a hearing on an opposed motion before 15 August.

3. Assistance with compliance

On 13 June 2015, in Madidi, a community meeting mandated their interim leadership to run the affairs of the Rama CPA until the annual general meeting (AGM) was held. A community meeting was held on 8 August in preparation for the AGM, which would be held on 26 September 2015 at Madidi. An AGM notice had already been sent through the Chief Director’s (CD’s) office. The Provincial Shared Services Centre (PSSC): Gauteng would appoint the authorised officer to oversee the AGM with the support of the Communal Property Institution (CPI) unit.

4. Development on CPA land

A meeting had been held with Tshwane Metro to advise them about the prevailing circumstances within the Rama CPA. The Executive Mayor had undertaken to liaise with the people responsible for development in order to appraise them about the issues raised by the DRDLR. An agreement had been reached between the Department and Tshwane Metro that all developments on the land would stop until a new Committee was elected.

In conclusion, the Independent Electoral Commission (IEC) had been requested to run the elections, as the Hawks would be supported with whatever documentation or access to any witness they needed. Any further development that took place on Rama CPA land would happen with the agreement of a duly elected Committee that was properly mandated to take decisions affecting the members of Rama. There would be regular communication with the State Attorney to ensure that the civil case was expeditiously brought to a conclusion. On 26 September a new CPA Committee would be elected to run the affairs of Rama and training would be provided to the new Committee soon after its election.

Ms Ompelege Mokadi, Director: Litigation, DRDLR, briefed the Committee on developments after the last meeting with the Portfolio Committee.

The Department had written a letter to the Acting Vice President, complaining about the President court order that had been obtained without the Department’s knowledge. The Rama CPA had filed an affidavit opposing the intention of DRDLR to take out its belongings and machineries, and the Department had also replied to the opposing affidavit of the ex-committee of the Rama CPA. The Department had also filed its heads of argument and was expecting the ex-committee of the Rama CPA to do the same, but they had failed to do. She said this prompted the Department to send a letter to the court asking for an order on an unopposed motion, as the ex-committee had had ample time to file the heads of argument. Before the end of the week, the Department would get a date for the hearing of the matter.

She gave details of the issues being disputed by the ex-committee of the Rama CPA. It had said the DLDLR had cited the incorrect parties, as the Rama CPA had held an AGM where new executives had been appointed. She noted that the Department had deposed that this was not a strong case as the people cited were in charge at the Rama CPA. The opposing party had said that everything was fine at the Rama CPA as its affairs were being run properly. The DRDLR was disputing this, saying everything was not fine because the Rama CPA have to submit an annual report to the Department, which they had failed to do. The last ground of dispute was that they were denying that the Department had ever served them the court papers. She said this was not true, as it had been there to serve them the court papers. These were minor issues raised in the opposing affidavit.

Discussion

Mr M L Filtane (UDM) said the issues raised in the presentation were of serious concern to the Committee. He asked what kind of documents the Hawks would be requesting from the Rama CPA committee.

Mr Sebape replied that there were allegations of fraud against community members. They had been given deadlines and they had failed to bring any documents. When the documents were brought, they were usually not sufficient. He commented that the Hawks needed documents for proof of the allegations, as sometimes they were merely allegations.

Mr Filtane asked if the Department had collaborated with the local government in this matter. He asked what was happening with the assets of the project -- who was taking care of them -- and wondered if they were safe.

Ms Rachel Masango, Chief Director: PSSC (Gauteng) replied that the ex-executives of the Rama CPA were in control of the assets.

Mr T Mhlongo (DA) said he was not happy with the progress report, as there was no progress in the report presented. He asked what the extent of the assets was, as this had not been provided. He was concerned that there was no inter-governmental relationship.

Mr Jeff Sebape agreed that there was no inter-governmental relationship, as there had been no good communication.

Mr Mhlongo required clarification on the development of houses. He was concerned that there had been many postponements of meetings with the Hawks, adding that there was no time frame for the work to be done. He said the Department was not taking the issue seriously, and asked for the names of the interim committee members.

Ms Masango replied that she did not have the names of the interim committee members at the meeting, but would make a request for them and make them available to the Committee.

Mr Sebape said that when the Department talked about development on the land, it actually meant houses.

Mr P Mnguni (ANC) congratulated the legal team of the Department for being on its toes in this matter, adding that there was a general belief that what was legal was also holy. He said that was no longer true, as fraudulent court orders were the order of the day .He said there was no transformation in the legal system and added that people were dying daily, and dockets were missing from the legal system. He asked if there was a good prospect of winning the case, and if there were sufficient grounds for locus standi.

Ms Mokadi replied that there was a good chance of winning the case, as there were serious financial allegations against the ex-committee of the Rama CPA. There had been no accountability and the former executives had failed to submit reports to the DLDLR. She said the Department had to approve the appointment of auditors to do the necessary investigations. The Department had also written to ABSA Bank requesting access to the bank accounts of these people, but ABSA had refused. This had resulted in the Department proceeding to the courts to request an order for ABSA to give the Department access to the accounts.

Mr E Nchabeleng (ANC) also asked if there was a good chance of winning the case, and whether the Department had enough time to prepare, as preparations were usually shoddy. He asked if the case was weak, and if the Department had locus standi. What was the possibility of looking at another alternative of accessing the documents, using the Special Investigating Unit (SIU), in the event that the case failed? He noted that if the CPA Act had been amended, the challenge could have been avoided. He asked for the progress report on the intention of the Department to present documents to Parliament regarding the amendment of the Act.

Mr Sebape replied that the DLDLR would continue to engage with the Hawks and the Metro. The Department was training CPA members, and was intending to train some of them in Mediation, adding that the aim was to have them come up with issues for intervention long before issues arose. The Department was aware of the problems and was searching for solutions. He added that dumping the CPA would involve expenses for the Department.

Mr T Walters (DA) said he was concerned that this could be a serious issue if the Department did not tighten its policy. He asked what structures could be put in place to prevent issues like this in the future.

The Chairperson asked how beneficiaries responded when meetings were convened, and the measure of their fear.

Ms Masango replied that they were involving the police and the security system of the Department for the safety of the community members and the officials of the Department.

The Chairperson remarked that the land was situated in Gauteng, while the beneficiaries were in the North West province. She asked what method was used to convene the meetings. Had the beneficiaries been convened since the last time the Department had met with the Committee, as it was wrong for the Department to write down the problems of the beneficiaries and disappear without giving the beneficiaries feedback.

Ms Masango replied that there was a sister office in North West which was close to the people and assisted in engaging with the people.

Mr Mhlongo asked whether the interim committee had access to the infrastructure and the businesses of the CPA.

Ms Masango replied that there were two committees. The term of the first interim committee elapsed, and the interim committee formed by the community members was currently trying to resolve the RAMA issue .She added that from that time, there had been a regularised executive committee. There had been a meeting in July 2015, and another on Saturday, 8 August. The new executive committee would be elected in September.

Mr Filtane asked whether they had collaborated with local government.

Ms Masango replied that the Executive Mayor of Tshane was aware of the RAMA Committee, adding that

he was not aware of the right people who should represent the RAMA Committee.

The Chairperson asked what documents were required for murder allegations.

Ms Mokadi said that the Department did not deal with criminal cases. SAPS was responsible for dealing with such cases and would therefore be in a better position to tell the Committee the right documents that were needed.

Mr Sebape added that there were other fraudulent cases, and when community members were asked to bring documents so that Department could deal with them, they were often reluctant.

Mr Mduduzi Shabane, Director General, DRDLR, said the Department would prepare such a report and include the CPA Act, and present it to the Committee.

Mr Mnguni said the government could not stand before the people to say it was sorting out problems without resolving the criminal cases, as leaving the responsibility of handling criminal cases to SAPS alone would not present a holistic aspect of the government. He said the government should take stock and closely monitor to see justice done

Mr Filtane asked if there was any deadline by which the former executive of the Rama CPA must supply the books. He commented that the Department was apparently dealing with people who were very crafty. He asked if the former executive was cited as community members, or as individuals. He asked if the CPA was change-oriented, adding that there was no good understanding of a relationship between the Department and the CPA.

Mr L Mbinda(PAC) said cases could be lost in court on grounds of technicality. There was no control over the courts.

Mr A Madella (ANC) said Department was defending the civil and criminal cases, and he hoped that the issues would fall in place. He had wanted to hear that machinery was being put in place to ensure a favorable outcome.

Mr Shabane replied that much of what had been talked about was not in the hands of the Department. All the “Ts” had been crossed and the “Is” dotted by the Department. The Department had a responsibility to mobilize and support the community, to make sure they fully participated in the election to be held.

Mr Mnguni suggested that the Committee should consider revisiting the Rama community, adding that the Department should help to roll out the necessary agencies.

The Chairperson said that point had been noted.

Briefing on the Riemvasmaak Community Trust

Mr Obed Mvula, Chief Director, Provincial Shared Service Centre (PSSC), briefed the Committee on the Progress made by the DLDLR on the intervention to address the challenges faced by Riemvasmaak.

Riemvasmaak was one of the first restitution claims to be lodged and settled in South Africa. The total extent was about 74 000 hectares, and the community had lived in “riet-houses” in abject poverty. The government and the local municipality had replaced the riet-houses with proper houses and provided other basic services. 28 households had been relocated to Welcomehood in the Eastern Cape, and those who had opted not to return had received financial compensation. Following allegations of misappropriation of funds, the Restitution Office in the Northern Cape had requested Ministerial approval to place the Trust under administration.

In February 2010, the Master of the High Court of the Northern Cape had appointed a firm of attorneys, Mathews and Partners, as administrators. The contract between the Commission and the Administrator was from 1 April 2010 to 31 July 2011. However, due to extensions, the contract had come to an end in August 2012. The contract amount was for R 4.2 million.Two of the Trustees had been had been arrested and found guilty by the court for misappropriating about R650 000, which had triggered dissatisfaction within the community

The Trust, represented by Mr Freddie Bosman, had raised their concerns with Mr Nkwinti, the Minister of the DRDLR. There had been a meeting in Cape Town with Mr Bosman, and the Minister -- accompanied by the MEC for Agriculture and senior managers – had called a community meeting at Riemvasmaak on 1 April 2014. During the meeting, the community informed the Minister that they did not need the Administrator anymore, as they wanted to manage their land themselves.

The Minister had advised the community to address governance challenges by setting up four committees -- governance, planning, repatriation and development -- under the leadership (chairmanship) of a local councillor. The most important issue was for them to consider changing the land-holding entity from a trust to a Communal Property Association, and to report back to allow him and the Department to register a new CPA.To date all efforts to assist the community to achieve this had been rejected, especially by Mr Bosman, so there had been minimal progress in this regard.

Riemvasmaak was one of the first Comprehensive Rural Development Programme (CRDP) site. It had been launched by the Minister 19 June 2009, just after the election of the new administration. The CRDP had yielded positive results that had culminated in the implementation of several projects which included 22 housesa bulk water pipe, an Early Childhood Development Centre, upgraded sports facilities, a clinic and a library.

On 15 May 2015, the Master of the Northern Cape High Court had called a meeting of the Riemvasmaak community, which was held at Naba Lodge in Upington. The meeting was the result of a request from the Public Protector to clarify the role of the Master and the other trustees appointed to deal with the affairs of the Riemvasmaak Community Trust. The meeting focused on the centrality of the Riemvasmaak Community Trust deed. The Master was the only person who appointed the trustees. All trustees were appointed according to section 7.2 of the Riemvasmaak Community Trust Deed. The Master acted within the confines of the Trust Deed. Finally, the Master had no say in what the trustees must do.

At the end of the meeting, the following resolutions were adopted:

• to have systems in place to hold regular meetings;
• to appoint alternative trustees;
• interim trustees be appointed until the next elective AGM;
• a governance workshop to be arranged to explain the Trust Deed, including who the Trustees were;
• the Master to make audited financial statements and conduct the election on 13 June 2015.

In conclusion, the role of the Administrator -- and who was currently managing him -- was not clear, as the Master was still in control. The business operation on the farm Vaaldrift was still the responsibility of the Provincial Department of Agriculture, and the DRDLR currently had a very minimal role to play after the completion of most of the CRDP projects.

Mr Mvula commented that this was a mountain, and the Department did not know when it would go away.

Discussion

The Chairperson commented that the only progress made was the meeting held with the Minister.

Mr Filtane asked why the Department had chosen a Trust, and not a CPA. He asked for the role of the Master in the administration. He said that there was a prospect of a court case.

Mr Mhlongo said there had been allegations that there were no financial reports. He observed that there had been a budget of R13 million for the bulk water pipe line, but only R12 million had been spent. He suggested that the Committee should send for the Master to come and give account, and asked if the Committee had the power to summon the Master.

Mr Madella said the Department had to engage the Department of Justice and the Master. There must be communication to iron out the issues .

The Chairperson asked if the beneficiaries had been given a choice between a CPA or a Trust, as they had written to the Human Rights Commission, complaining of being forced to go for the Trust.

Mr Shabane replied that the Department was more in control of a CPA, and when there was a problem with a Trust, it could not do much. He gave an instance in KwaZulu-Natal, where the Department had told the community to approach the Master, and the Master had removed the Trustees. Only the members of a Trust could convert it to a CPA.

Mr Filtane said the core business of the Department and Committee was to make sure development took place. He asked what measures were being taken to unlock the challenges. What legal option was available to make sure there was development? What about getting rid of the Administrator to ensure there was development, as the people were crying that there was no development?

Mr Mhlongo said the CRDP projects had been finalised except for one, and he wondered why this was so. He requested a financial report of the project, as he did not understand the justification.

Mr Nchabeleng said he was concerned about the partiality of the Master, as there had been allegations of embezzlement and there had been no development. The Department wanted to get hold of documents and could not, because there was a Trust instead of a CPA. A decree signed by the President could release any document, and he asked if there were other ways to address the issue of the Master.

Mr Mhlongo said he was concerned that the Department had held no consultations with the community. There should be a change to a CPA, where community members had ownership of the land.

The Chairperson remarked that there would always be problems, but such problems required solutions.

Mr Mnguni said a trust was good for personal endeavour, but not good for people coming together for development purposes. He added that the legal system was not beyond transformation.

Mr Nchabeleng appealed to the Director General to give a list of all CPAs that had challenges, as part of the problem was that there were the people in the Department who were interfering in this project. He appealed to the DG to stop such interventions.

The Chairperson commented that the Department had a responsibility to submit an annual report.

Progress report on implementation of Spatial Planning and Land Use Management Act (SPLUMA)

Dr Nozizwe Makgalemele, Deputy Director General, SPLUM, briefed the Committee on the progress in implementating the Spatial Planning and Land Use Management Act (SPLUMA).

The strategic intent of SPLUMA was to bring about economic, spatial, environmental and social changes in spatial planning and land use management for the country. Some of the objectives of SPLUMA were to provide for a uniform, effective and comprehensive system of spatial planning and land use management for the Republic; and to ensure that the system of spatial planning and land use management promoted social and economic inclusion.

SPLUMA entailed land development management, spatial development planning and frameworks, and land use management schemes. The principles of SPLUMA included spatial justice, spatial sustainability and good administration.

The Minister had requested the President to bring the SPLUMA into operation on 1 July 2015, as the proclamation had been signed and gazetted on 27 May 2015, and SPLUMA was now law. From 1 July 2015, municipalities were required to have an administrative system in place to receive applications, revised delegations and categorisation of applications, a municipal planning tribunal (MPT) and an appeal body, municipal bylaws and tariffs and resources.

From July 15, much progress had been made. Overall provincial readiness was between 60 and 81%. From a national perspective, there had been steady progress on implementation readiness across the country, with the establishment of Municipal Planning Tribunals (MPTs) and the finalisation of bylaws, tariffs and delegations. The Western Cape was incrementally introducing SPLUMA and the Land Use Planning Act (LUPA) to municipalities that were ready. The City of Cape Town was now implementing SPLUMA, LUPA and their municipal bylaws. However, there were challenges in some provinces, mainly the Eastern Cape, Limpopo and North West and to a lesser extent, Mpumalanga and KwaZulu-Natal.

The Department was in the process of rolling out SPLUMA training to municipal officials. A training session was held in June, working in conjunction with the SA Local Government Association (SALGA) and the Department of Cooperative Government (DCoG). Training material had been developed which focussed on a SPLUMA overview; the roles and functions of MPTs; and processing of land development applications. Provinces had customised training material where necessary. The number of days per session varied across provinces, taking the need into consideration. Stakeholders identified for training included municipal officials, councillors and members of MPTs. Current training was focussed on municipal officials dealing with land development applications. The training of MPT members would begin once structures were in place, and training would be rolled out on a continuous basis.

The Department had developed a guideline on transitional measures which had been circulated to all municipalities and provinces. It provided guidance to municipalities and provinces on how to deal with applications during the transition to the new system. Due to variances in provinces, further work on this was in progress. The Department would further refine this guideline, based on a legal opinion that it had commissioned.

The enactment of SPLUMA had resulted in some challenges. There had been delays in the establishment of MPTs due to the need for Council decisions and the need to re-advertise where no sufficient nominations had been received. The finalisation and adoption of by-laws had been slow in some provinces. Municipalities had identified challenges in securing funding to advertise the final by-laws, and the Department was assisting where possible. Some municipal council decisions may require more than one council sitting, and this leads to a delay. The Institution of Traditional Leaders had raised a concern about the SPLUMA not considering sufficiently the role of Traditional Councils in spatial planning and land use management. There had been a call for its suspension until this matter had been resolved. The Minister was engaging with the National House of Traditional Leaders. The DGs of the DRDLR and the Department of Traditional Affairs had established a technical team to look at possible amendments, and legal opinion had been sought.

Guidelines had been jointly issued by the DRDLR and SALGA regarding the transitional measures and the complexities with regard to variances across provinces, Legal opinion had been sought to clarify uncertainties.

The Department was supporting six provinces to develop model bylaws, tariffs, delegations and interim measures. Progress on municipal readiness was being tracked on a monthly basis. The Department was closely working with provinces to ensure the readiness of municipalities, and convened a National Coordinating Forum on a monthly basis. In some instances, the Department provided municipalities with draft Council resolutions for their adoption.The Department would continue to provide this support. Joint intervention teams from the DRDLR, DCOG and SALGA were in the process of being formed and would be deployed to struggling municipalities. With the proclamation notice in place, the Department would continue to monitor progress, provide hands-on support and track readiness. There had been an improvement since the publication of the proclamation notice.

Discussion

Mr Mhlongo asked if SPLUMA would be implemented after the training.

Ms Makgalemele replied that SPLUMA was law. Some municipalities were already complying with the law, but others had opted to stay with what they had.

Mr Mhlongo asked how traditional leaders could be prevented from contradicting democratically-elected people. He asked what was in the national interest, and what was non-compliant.

Mr Rajesh Makan: Acting Chief Director: Planning Facilitation, DRDLR, replied that “national interest” meant that municipalities had to develop criteria that would identify areas of national interest and take a decision on what would make their projects viable.

Mr Mhlongo asked if municipalities like Johannesburg were included in the district by-laws.

Ms Makgalemele replied that it was a municipal function and the Department was addressing it at the municipal level. She added that in Johannesburg, it was only by-laws.

Mr Mhlongo asked what was non-compliant.

Mr Rajesh Makan replied that it meant the Municipalities had not made a decision, or were having a problem making a decision.

Mr Mhlongo asked for details of the progress made in training.

Ms Makgalemele replied that there had been a roll out in terms of training, as municipalities were grouped in terms of distance for ease and speed. People were being trained to assist in the roll out of information on what SPLUMA was all about.

Ms N Magadla (ANC) asked why there was training in some provinces and none in others.

Ms Makgalemele replied that municipalities had to realise that it was their function, and have a budget for the implementation.

Ms Magadla asked what the joint MPT option was, and asked how the financial reporting was done.

Ms Makgalemele replied that this was an option for where there were insufficient financial resources, and costs could be shared.

Mr Filtane asked if the traditional leaders had been consulted in the drafting of the by-laws, and asked for the content of the by-laws.

Mr Shabane replied that the traditional leaders had taken a very firm view that the consultations had not been sufficient. He said the legislation was never about traditional leaders, as it was exclusively a municipal function. It would be in the interest of the traditional rulers to work with the Department, as most of the lands were unplanned and administered by the traditional rulers. He said that there were processes to engage the traditional rulers.

The Acting Chairperson, Mr P Mnguni commented that the Department should define space in a certain manner, adding that if it was an Act and there had been no consultation, it could not stand. He referred to the 2010 case referred to in the presentation, and asked who owned the land. He asked if the consultation should be with the people or traditional leaders, adding that the roll-out should be to the stake holders. He said it was time to roll-out a democratic Land Use Planning Act. He asked which statute empowered traditional rulers to be the custodians of the land.

The Acting Chairperson said the draft report of an oversight visit of the Committee had been tabled and Members would go through it, adding that the report would be discussed and adopted in the next meeting.

The meeting was adjourned.