Land Rights Management Facility on its 2015 Performance, with Deputy Ministers

Meeting report

Opening remarks by Deputy Minister of Land Reform
Deputy Minister of Land Reform, Mr Mcebisi Skwatsha, of the Ministry of Rural Development and Land Reform, thanked the Committee for the opportunity to appear before the Portfolio Committee. The role played by Members in their oversight of the Department was welcomed. He was accompanied by the Deputy Minister of Rural Development and the delegation from the Department of Rural Development and Land Reform (DRDLR). The team from Cheadle, Thompson and Haysom who manage the Land Rights Management Facility on behalf of the Department was also present.

Land Rights Management Facility on its 1st, 2nd & 3rd Quarter 2015/16 Performance
Mr Brendan Barry, Director: Cheadle Thompson & Haysom Inc, said that objective of the of the Land Rights Management Facility (LRMF) was to facilitate the provision of specialised legal and mediation services to indigent individuals and communities who faced the violation of their land rights and livelihoods. Key to the functioning of the LRMF was designing and conducting an appropriate training programme to educate panel members of lawyers and mediators to improve their skills and capacity and an appropriate skills transfer programme for officials of the Department.

The key deliverables of the Facility were: Panels; Case referrals; Monitoring; Panel funds; Training and skills transfer and Reporting.

Mr Tefo Raditapole, Director: Cheadle Thompson & Haysom Inc, reported that there were 172 legal and mediation service panellists; of which 100 were legal services panellists, and 72 were mediation services panellists. Since 1 January 2013, 1 830 matters were dealt with by the project. The case volumes were 1 397 Land Tenure cases, 218 restitution cases, and 215 communal property institution (CPI) cases. As at 31 December 2015, there were 982 matters pending across all focus areas.

Mr Barry said that land tenure security matters represented the bulk of cases, with 1397 matters administered by the LRMF since 1 January 2013. As at 31 December 2015, 734  cases were active and pending.

The top eight hotspot municipalities were: Newcastle Local Municipality(LM), Dihlabeng LM, Breede Valley LM, Emadlangeni LM, Emnambithi LM, uMngeni LM, Mogale City LM, Drakenstein LM.

There were 61 Communal Property Association (CPA) matters active and pending on 31 December 2015. 112 CPA matters had been finalised. There were 137 044 beneficiaries in CPA matters. There were currently 175 active and pending restitution matters on 31 December 2015.

Mr Raditapole reported that there were 175 853 restitution beneficiaries.

Mr Barry reported that in a monthly breakdown of the legal and mediation panel funds was Restitution 40%; Land Tenure 49% and CPI 11% (see document for financial report.

The lessons and recommendations that had been identified were:
- Land rights awareness;
- Land reform legislation – statutory interpretation and certainty;
- Enforcement of criminal provisions;
-  Compulsory alternative dispute resolution (ADR)/mediation promotion strategy;
- CPI capacity and resourcing;
- Intergovernmental coordination;
- Panel experience and expertise;
- Panel reach and responsiveness;
- Case monitoring and tracking; and
- Speeding up litigation.

Mr Mduduzi Shabane, DRDLR Director General, said that there was a direct relationship between the work of this facility and the Extension of Security of Tenure Amendment Bill that was before the Committee. Much of what was in the Bill would deal with the issues that had arisen. The Department would not be reactive but more developmental in its focus. He felt that it was important to bring that connection before the Committee in case Members might be concerned because Mr Barry had said that the project was coming to an end. It was therefore important to explain that this did not mean that the Department would abandon the service going forward. This also did not mean that the project would not continue beyond this month; it was just the reporting period that was referred to. Service would continue until the Bill was passed into law; which would then assume much of the responsibilities here.

The Deputy Minister of Rural Development, Ms Candith Mashego-Dlamini, said that after seeing Slide 25 she was sure Members would have realised that the cases in the Land Claims Court were very high. She explained that the Department had had a session last week with the Department of Justice to request them to establish the Land Claims Court as a full Court. As it stood now there was no full time personnel and matters were just allocated to any one of them. So discussions were continuing and the Committee would be informed when there was a response. The Department of Justice was made aware that there were many cases so the Minister, the Deputy Ministers and the Director General were taking discussions forward so that there could be full time personnel.

Discussion
The Chairperson expressed concern about the expenditure peak in December 2015. She asked if expenses were continuing to spiral and what had been put in place to deal with the situation.

Mr Vela Mugwenge, Acting Deputy Director General: Land Tenure and Administration, DRDLR replied that in December 2015 panellists tended to submit more invoices because the contract was coming to an end and there was anxiety, therefore the peak in invoices.

The Chairperson asked if municipalities were co-operating in terms of the Extension of Security of Tenure Amendment Bill (ESTA Bill). This is because an alternative was supposed to be provided if a person was being evicted and an eviction order had to be given to a particular municipality, to the person being evicted and to the Department.

Mr Mugwenge said that there was an expectation that with evictions municipalities had to play a particular role.

Mr Sam Mogashoa, Acting Director, DRDLR, replied that prior to eviction, due legal process had to be followed, an application has to be made for an eviction order, a notice has to be issued; and one of the notices has to be given to the municipality for purposes of alerting them to the impending eviction application. The Department would then be required to provide a Probation Officer's report which would deal with availability of alternative accommodation. The official would be required to engage with the municipality to see if there was alternative accommodation available in that area. So there was that level of engagement between the municipality and department. Perhaps there would be a challenge when the actual allocation had to be effected if the municipality had constraints regarding the availability of alternative accommodation.
 
The Chairperson asked if the composition of the panel - in terms of gender - was considered when advertising. The situation was not satisfactory, women had to be empowered.

Mr Barry replied that the panel was constituted giving a lot of attention to gender, geographics and race. A public process was run together with the Department and assessment had to be based on that. There were approximately 300 applicants for the Panel. It was constituted per province so an attempt was made to constitute the panel bearing some relationship to the flow of cases from that panel. It was thought that the balance achieved was quite reflective as it also ensured that a number of young women attorneys, who did not have the same level of experience as some of the other applicants, were brought onto the panel. Obviously, there was a gender imbalance on that panel regardless of the steps taken. A reconstitution of the Panel would have to consider a more equitable gender balance.

Mr Mnguni said that the demographic should also reflect disability.

The Chairperson asked about the Communal Property Associations (CPA) finalised matters reflected on Slide 21. She asked why 14 matters were recommended for de-registration and what happened next. She asked further if regularisation was impossible and if so what happened next.

Mr Raditapole, CTH Director, replied that there were a number of reasons that underpinned that. There was a two stage approach to regularising the CPA. The first stage was to send the panellist to do fact finding to find out exactly what was happening on the ground; then depending on the outcome of that, instructions were given on the regularisation to deal with compliance issues. Sometimes the response was a need for mediation to deal with the things that would disturb the regularisation process. Ultimately the panellist on the ground then recommended de-registration for those 14 matters. This feedback was then sent to the Department.

Mr Mogashoa explained that there were a number of reasons why recommendations came about for de-registration of entities like the loss of land, and if the project could not be regularised for some reason. When a matter could not be regularised, one looked at the nature of the issues that made it so; then depending on the cost of the possibility of it not being regularised, a course of action was designed. If all else failed then mediation was the next option. Depending on the cause of it not being able to be regularised, consultations were done that could then deal with that particular issue before regularisation could be considered.

Mr Madella asked if the Department could provide a report on the steps taken, or mechanisms implemented regarding regularisation.

Mr S Matiase (EFF) said that the Committee had been told that the Land Rights Management Facility (LRMF) had been appointed on a project basis, and would be phased out; but work would continue beyond the date of expiry. He asked how the mandate or function of the LRMF was structured and if it was suitably located to be assigned to LRMF which was run on a project basis with an expiry date. He asked further if it was a relevant mechanism to execute a mandate such as this. This mandate was multidimensional because it dealt not only land tenure, but also land restitution, Communal Property Institutions (CPI) and registration.

Deputy Minister Skwatsha replied that due to the delay of processes in the Department's supply chain, the project was run on a month to month basis and extended for a certain period. The Department still felt that whatever the outcome of the supply chain, it would make sure that the system was not lapsed because it was important that it ran on a continuous basis.

The Director General said that this was why they had come up with the ESTA Amendment Bill. The work of the Land Rights Management Facility had to be institutionalised. The Bill that was before the Committee would set up the Land Right Management Board. That board would set up the Land Rights Management Committee that would do a lot of this work going forward. The finalisation of that process was going to be very helpful.

The Director General said that in Mr Barry's presentation he spoke about how the LRMF had come about. Ordinarily the Department would argue that this was the work that the former Legal Aid Board was supposed to do. The Department had worked with the Legal Aid Board but then it became apparent that they no longer had the capacity or the money to deal with these matters. In fact they were going to focus on other matters and no longer on evictions. Every time there were evictions, the DRDLR was asked what they were doing about evictions. The Legal Aid Board was reporting to a different ministry, Justice. But ultimately the Legal Aid Board said they were going to narrow their focus. They then became Legal Aid South Africa. The DRDLR had to come to Parliament to ask for money to do this work. Legal Aid South Africa was now looking again at playing a role in this process. A joint task team meeting was held with them to look at resolving this issue going forward.

Mr Mugwenge stated that a process had been put in place to ensure that the service continued. The Department was looking at having a service provider when the contract comes to an end.

Mr Matiase said that the pie chart on Slide 9 showed that the biggest challenge the Department was facing was that of land tenure. Millions of South Africans were extremely vulnerable with security of tenure. The amendment of ESTA would have to take this into account. It would be useful to get into the details of the relationship between farm workers and farm owners.

Mr Matiase referred to Slide 21 and said that this information would be more useful if more detail was provided about Communal Property Associations (CPAs) specifically. This linked with what the Chairperson had raised about more effective oversight, if more detail was provided. More detail should be given as to where CPAs were situated, who their members were, and the stage of mediation or litigation including those that had already been dealt with by various district forums and those pending. This would facilitate better oversight.

The Director General replied that the team would provide a report of these details.

Mr Filtane referred to Slides 3 and 21 regarding the unlawful sale of land with 'legal representation' and 'specialised legal services' to communities and individuals, to foreground an issue he wanted to ask the Department for assistance. There was a village near Mthatha which may be the subject of a land claim and there was a rampant sale of vacant plots for R20 000. He asked if the Department could try to deal with this urgently. There was a huge demand for the land and the prices were increasing.

Mr Filtane referred to Slide 5 which dealt with Key Deliverables. Under Outcomes, 'Substantial national reach' was listed. He asked if this could be converted to a percentage as it would be understood better in this way. This service was very important in the context of what was taking place in South Africa.

In response, Mr Barry referred the Committee to Slide 7 and said that they did not have the exact percentages but this could be provided quite easily; but Slide 7 gave you a sense of the breakdown between provinces. So a regional percentage breakdown was not done, but it can be seen for instance that the largest panel was KwaZulu Natal, the second largest was Western Cape and Gauteng. This was largely reflective of the number of cases coming from those provinces. As was said, there was no purpose in establishing a panel of 100 lawyers in Mpumalanga for example if the case flow was not going to support them. The aim was to get the most qualified smaller group that had more of a relationship to the number of cases. So that was how those proportions have operated. It can be seen in the Northern Cape for instance that there were insufficient panellists, that was primarily as a result of the applications received. As the panel got revised, revisited and renewed, particular efforts would have to be embarked on there that did not simply rely on applications received.

Mr Filtane asked when the outstanding cases referred to in Slides 10 and 13 were going to be finalised; and which provinces had the most evictions. Why was there such a large concentration of referrals in KwaZulu Natal, Mpumalanga and the Western Cape as shown in Slide 11? He asked if the reasons were social, political or the way in which the land had been occupied historically.

Mr Barry replied that the KwaZulu Natal and Mpumalanga cases were very similar with a dominance of labour tenancy in those areas, and many of the disputes were related to historical disputes around access to land. That was one of the reasons why KwaZulu Natal and Mpumalanga stood out. What was interesting about that was that there was a local municipality in the Free State in a major farming area. There were not dissimilar occupancy patterns in some of those areas. In the Western Cape one was dealing with major agricultural areas. Most of the disputes there involved labour disputes as well, so it was evictions following labour disputes. There was a strong pattern associated with land holding in those particular municipalities.

Mr Filtane asked what gets done with the interest that was paid back to the Department.

Deputy Minister Skwatsha replied that when the Department accounted it also accounted on the interest received. The interest received from institutions went into the revenue account. The revenue account was accountable to National Treasury. This amount did not come into the budget.

Ms A Qikane (ANC) asked for clarity about evictions where people could not get legal representation because lawyers were not accessible. She also wanted to check if tasks included land claims.

Deputy Minister Mashego-Dlamini replied that when working with the Legal Aid Board, problems were experienced because in some of the cases people were not represented, so the Department removed the Legal Aid Board. This matter was discussed with the Department of Justice as to how to get the Legal Aid Board to work properly. The Land Claims Court was fully functional.

Mr A Madella (ANC) said that one of the recommendations referred to an awareness campaign. If one did some research on evictions, one would find a survey done about 12 years ago which showed that approximately 2.5 million people were displaced. He asked if the Department could do research on the reasons for evictions and displacement. For example, what was happening and on what basis people were evicted or displaced?

The Director General replied that following the 2012 revolt of the farm workers at De Doorns, a special committee was set up by the Presidency to look at the living conditions of farm workers in South Africa. Deputy President Ramaphosa led a process to develop a social group between government, labour, employers and other related organisations. Two years ago there was a similar decision that the Deputy President was going to lead a process to develop a social group between the agricultural unions and all the commercial actors in the agricultural sector, farm worker organisations, government and other stakeholders. This particular process involved the DRDLR, the Department of Justice, the Department of Labour, and the Department of Agriculture, Forestry and Fisheries. As a matter of fact two days ago the Deputy President had a meeting with these ministers where this matter was discussed. He was sketching this background because he believed this process, being lead by the Deputy President, was going to assist the Department in getting to determine what was actually happening on the ground. All the players in the sector were being drawn together to resolve challenges in the sector. If any research was going to be done it would be done under the auspices of this process that was being led by the Deputy President. The Department would contribute fully through this process led by the Deputy President.

Director General Shabane felt it might sound like he was overselling and too ambitious about what the ESTA amendments would do. One of the reasons the Department could not give Parliament the full information about what was happening on the ground, was because there were no structures at a local level that involved all of the actors. The Land Administration Committee that the Department sought to establish in terms of the Bill would help it put a structure on the ground where it would be possible to work together as a sector to resolve issues at the local level. This would involve a developmental aspect. The Land Administration Committee would go a long way in doing that.

Mr Madella asked for information about Neville ‘Gadide’, if the investigation had been concluded and what the outcome had been.

Mr Raditapole, CTH Director, replied that the panellists had been requested to assist the community to lay charges against Mr ‘Gadide’. He had agreed to come to some meetings but he failed to attend. They were waiting to hear from the panellists as to how far they had gone with the community to lay charges against him. He was unsure about the allegations but it seemed that the CPA had given land to a farmer who managed to divert the money to his own account. The farmer has cooperated and had a record of where the request was made to divert the funds. There were cases where panellists assisted communities to lay charges. There were two cases in the Northern Cape and one in the Free State.

Mr Nchabeleng asked about relationships the Department had with others in the NGO sector involved in human rights abuses and land issues.

The Director General replied that when the LRMF was conceived, it was not thought of as having an outreach component. The Department has got to step up with outreach so that it can engage at a local level. It was not designed to have any particular relationship with other role players and this was a critical thing that had to be in place. But essentially it was a function of the Department to make sure that there was a functional relationship between itself and the civil society partners on the ground. That was why in October the Minister instructed the Department to resuscitate those structures on the ground where it would have a formal relationship with civil society organisations.

Mr Barry, CTH Director, replied that the Facility itself does not have any direct relationship with advocacy NGOs working within the areas. What has been done was to liaise with legal NGOs who were also dealing with land related matters. Some of the cases were handled by Lawyers for Human Rights and the Legal Resources Centre who were also on our Panel.

Deputy Minister Mashego-Dlamini replied that the Department had a list of all stakeholders. It did not have a formal relationship with them but when there were issues for consultation or a change of policy, they were invited for discussions. There were no formal relationships because most NGOs in land sector were those who needed funding and the Department did not have the capacity to fund them. Some of them who had managed to get funding were dealing with communities, and were part of the stakeholders aligned to the Department.

Mr Mnguni expressed concern about the reporting format seen on Slide 28, looking at the period April to December 2015 for the purpose of accounting. The graphical representation in this report was very useful but it was without projections. He asked the Department why it did not give Parliament projections and reflect on performance. The PFMA should have been adhered to.

Deputy Minister Skwatsha apologised to the Committee because it was felt that the budget sent to the management facility was recorded as transfers in the overall budget. It was not unpacked to whom or to which institution the transfers were done. He would request the Facility to report according to the quarter and provide projections.

Mr Mnguni asked about the potential anomalies running from Quarter 2 to Quarter 3.

Mr Barry replied that what happened in a particular quarter when dealing with numbers, was that there was a certain number of cases starting the quarter and there were a certain number of matters to look up to close during that period. The closure of a case was not simply the decision of the LRMF; there was a report that suggested that the matter was ripe for closure; then a departmental official was liaised with to confirm that that was indeed a matter that could be closed. When feedback was received and when the decision to close was taken, this involved a certain amount of time. In some cases the feedback would be to not close the matter. So that was the one issue – it was a moving target. Also matters that had closed previously, doubled up again or another dispute arose so it had to be reopened. He agreed there was a need to capture deadlines in a matter that was clearer for the Portfolio Committee to understand. So it might be said that 100 cases were closed, when in fact only 70 were closed. Thus the figures were not as clear as they should have been; but this would be dealt with in the future.

Mr Mnguni asked for information about the anomalies regarding KwaZulu Natal versus the Western Cape as the Committee was seriously concerned about this. He asked for clarity about Departmental capacity in terms of the recorded number of cases.

Deputy Minister Skwatsha replied that the Department did not have the capacity to deal with all the issues; but it accepted the need to not privatise its responsibility. In terms of the organogram, the Department did not have enough staff and capacity because it needed more legal people than anything else. In the organogram given in terms of the Public Service Act, there was a need for a legal unit. The Department was committed to strengthening its monitoring and strengthen and monitor the management facility.

On the Constitutional Court matter, Mr Mnguni said that too much was left to the court to make history. He asked for more information about the two matters before the Constitutional Court.

Mr Barry replied that at least six Constitutional Court matters were being dealt with, four land tenure matters and two on restitution. He suggested that they provide a succinct analysis of those matters to the Department, who would then forward it to the Committee.

Mr Madella asked for an explanation about how the figures were worked out. These were the 745 cases for land tenure; minus 61, with 84 carried over, leaving 706 cases. He was unsure how this was worked out.

The Chairperson asked what were the benefits and impact of the workshops that had been run.

Mr Raditapole replied that the workshops generally helped in the sense that cross learning could take place across provinces, where all officials and panellists together, were discussing the difficulties and the solutions. With the high turnover of staff, things like induction, understanding the law, and CPAs, were things that these workshops provided information on and the opportunity for people to be brought up to speed on the law and farm operational issues. Evaluation forms had been quite complimentary of the information given. This information was available in the quarterly report. He was not sure if things could be taken further at this stage, but all the interventions were found to be quite useful and also in being able to give feedback as well.

The Chairperson asked for clarity about the matter raised in the training workshops about the lack of accessibility of a toll free number

Mr Madella asked if when using the toll free number any costs were involved. Farm labourers were some of the lowest paid in the country and this would hard for them if costs were involved.

The Director General replied that the Department was committed to investigating a toll free number where the issues of access had been raised. He asked Mr Ntuli to explain further about farm workers being constrained when using cell phones because of some nominal fee that they had to pay when they called the toll free number.

Mr Jomo Ntuli, Director: Tenure Reform, DRDLR, replied that the Department had engaged the service providers, mainly Cell C, Vodacom and MTN. When calls were made from cell phones to that tollfree number there was a certain amount that had to be paid, so it was not totally free. They could not give it to DRDLR for free so they were asked if it was possible to record that number then DRDLR agents could pick up that number and call that person back. They could not give that because to them it was a cost and a profit making issue and they were not willing to give it to DRDLR. When one called from a land line it was free but when one called from a cell phone, one had to have an amount on the phone like a minimum of R5.00.

The Chairperson said that unfortunately most of the people living on farms do not have landlines as one was referring to poor rural people. He asked if there was a database of eviction cases that had been referred to the Department.

The Director General replied that it had become apparent that efforts made in the past were not effective. When the LRMF was set up, a campaign was run, community radio stations were visited to try to popularise the facility and the toll free number. It was acknowledged that the Department did not reach as many people as it could have reached. It had taken advice to take further steps to reach out especially to areas identified as hot spots. The trends were clear from the report. DRDLR needed to take this report with the trends and do outreach visits in the areas and talk to those communities. There was an instruction from the Minister that a network forum should be established with DRDLR, police, civil society and NGOs to meet on a quarterly basis to share information. This would allow DRDLR to have a better sense of what was happening.

Mr Filtane hoped a response would come about the village in Mthatha where plots were being sold.

The Director General asked Mr Filtane to provide the details of this specific case so it could be looked into.

Mr Filtane said that it looked like the Department had no solution to the problem about the toll free service. What concrete steps was the Department planning to take to ensure that the line was freely accessible to cell phone users on farms?

Mr K Robertson (DA) asked if the Presidential Hotline was a toll free number for cell phones as well. He suggested that perhaps this could be an avenue to explore.

The DG said that Mr Robertson had been very helpful in responding to the toll free phone issue because there was the option to explore other avenues. The Department had gone to cell phone providers and had never got any joy. It had even contracted an IT company to help to resolve this issue and it was unable to.

Mr Ntuli added that the Presidential Hotline had been looked at including other free numbers and DRDLR found that for cell phones one had to have at least 10 cents for a connection and then that other number took the call. This would be investigated further; at least to have a minimal cost option.

Mr Walters asked (a) to what extent was there full coverage in every district, (b) to what extent did that speak to well set-up land rights committees and what was the institutional communication. What was the expectation of this body to speak to the other entities at the district level?

The DG replied that Mr Walters was asking what was going to be the relationship between the LRMF at this level and structures on the ground. This relationship had not been defined as yet, The District Land Committee for instance was the other structure established at district level very recently, and it had not begun its work as yet. The Land Rights Management Committees had not been established as yet because they were going to be the statutory structures that would only come into operation once Parliament had passed the Bill. This relationship had to be defined before the Bill became law.

Mr Mnguni was very disappointed in the way the toll free phone issue had been dealt with. How can we not be able to find a free number over such a long time? How can we not find a mechanism so that the victims can easily call a number without hindrance? A toll free number – a mechanical issue – what steps are going to be taken?

The DG replied that all the questions Mr Mnguni had asked, had not been answered. So responsibility was taken for not providing that information. In the next reporting period, DRDLR would make the outstanding information available. In the absence of empirical evidence, it was unable to say what the real causes of the anomalies were in the Western Cape. Mr Barry had offered some responses.

The Chairperson thanked all for the presentation, although there were gaps that needed to be filled. The Department had to monitor all service providers to ensure that all reports were in compliance. The Department had to get the details of the Mthatha matter mentioned by Mr Filtane so that they could intervene. The template used when writing the report was a little bit confusing. In future the Committee had to get quarterly reports which were the build up to the Annual Report. The report on the nature of the Constitutional Court cases had to be provided to the Committee. On the peak in expenditure, invoices had to be submitted at a specified time. There needed to be another meeting on de-regularisation and de-registration. The Committee also requested a progress report on the alleged fraudulent cases. The toll free number needed to be taken further.

Preparations for Extension of Security of Tenure Amendment Bill Public Hearings
The Committee Secretary reported that everything was in order and preparations were continuing unabated.
 
The Chairperson appealed to Members to confirm their attendance with the Committee Secretary.

Members asked questions about travel arrangements which were replied to and the Chairperson referred to the policy on travel arrangements.

Mr A Madella (ANC) expressed concern about whether communities who were supposed to know about the public hearings had been notified.
 
The Committee Secretary replied that Parliamentary Communication Services (PCS) would be there for a week. Contact had been made with COSATU in terms of mobilising their unions.

The minutes of 24 February 2016 were adopted.

The meeting was adjourned.