Land Rights Management Facility: progress report

Meeting report

Preliminary Comments

Ms Vuyiswa Nxasana, Acting Deputy Director General, Department of Rural Development and Land Reform (DRDLR), introduced all the Department officials who were present, as well as Mr Ignatius Maenetja, of Maenetja Attorneys, which was the new service provider appointed on 1 July 2016 to manage the legal issues of the contract of the Land Rights Management Facility (LRMF).

Mr M Filtane (UDM) asked if the Committee was in the business of hosting service providers of the Department. He did not remember if the Committee had ever hosted one, and was concerned about the Committee starting something new.

Mr P Mnguni (ANC) said that the Committee had hosted a service provider in the past, and the service provider came at the pleasure of the Department. The law provided that the Portfolio Committee could call anyone to appear before it. The Committee wanted to hear from the service provider about its turnaround plan and vision. It was fitting for the meeting that the Department had invited its ‘new baby.’

Mr T Mhlongo (DA) said he concurred with the view of Mr Filtane, and added that he was concerned that most of the officials of the Department that had been introduced by Ms Nxasana were in acting capacities.

Mr Mnguni said he was in agreement with Mr Mhlongo, as an official who was ‘acting’ was less empowered and enabled to occupy that position

The Chairperson replied that the Department had indicated in its presentation the previous week that there was a capacity challenge, and this explained why many of the officials were in acting capacities. It was to the advantage of the Committee that the service provider was at, the meeting so that the Committee could be aware of the challenges. She was in agreement with Mr Mnguni that the Portfolio Committee had the power to call anyone to appear before it. It dealt with the report of the Department, and not the service provider.

Mr Filtane said he would be more comfortable with the arrangement if it had been the Committee that had invited the service provider. It was uncomfortable for the Department to suddenly appear with the service provider, without pre-knowledge of the Committee. He expressed his displeasure at the method used.

Mr T Walters (DA) said if the Department wanted to invite a service provider, the direct approach would be to run it through the Portfolio Committee beforehand.

Mr E Nchabeleng (ANC) said the Portfolio Committee was not interviewing the service provider for the job. It must hear what the Committee had to say and know what the expectations of the Committee were. If the Department had been invited to explain what was happening in the LRMF, and it had come with its technical team, it was well within its rights.

Mr Mnguni added that the Committee was happy that the new service provider was at the meeting, as it had been unhappy with the performance in that area of work.

The Chairperson said the Committee should agree to proceed with the presentations. It was good that the service provider was present so that the Committee could address some of the relevant issues.

The Director General said he took responsibility for bringing the service provider, as he had insisted that he came for the meeting. The Committee had gone to public hearing on two occasions this year, and after them had poured out its feelings in Parliament. The Department had invited the service provider so that it could appreciate better what the Department had to deal with when it appeared before Parliament. After the roll-out of the programme, there would be the training of new panelists. The Department wanted the panelists to move among the communities in order to understand what the people were feeling. It wanted to pre-empt the Committee when it submitted the report on the structure of the land tenure administration. There were many people in acting appointments, from the DDG to the Chief Directors. The Department was feeling a financial crunch -- it was unable to fill the posts when people resigned, because there was no money to do so. National Treasury had cut very deeply into the compensation of employees. 

He said the presentation was not 100% aligned to the requirements of the Committee, and he apologised for that. There were still some transitional issues, as the CTH had not submitted its final close-out report, and as a result the Department did not have all the details.

Land Rights Management Facility: Briefing

Mr Samuel Mogaswa, Acting Director, Department of Rural Development and Land Reform (DRDLR), said the Land Rights Management Facility (LRMF) was established in 2012 to provide legal representation to indigent farm-dwellers and labour tenants.

At the moment, it was dealing with 776 land rights matters. Of these, 692 had been pending at the time of transition to the current service provider, and 84 new matters had been received since its appointment. Old land tenure cases were 87% of the total, while new ones were 8%. Old land tenure mediation was 4%, the new was 1%. The court cases were divided among various forums – magistrates courts (58%), land claims courts (1%), the labour court (1%), high court (14%) and Constitutional Court (1%). Other cases initiated, but not taken to Court, made up 25% of the total.

In the Eastern Cape (EC), there were six land rights cases, with concerned with legal evictions and two with illegal evictions. In the Free State (FS), there were 20 eviction cases, of which three dealt with legal evictions, one with illegal evictions, and 13 with threatened evictions. The number of land rights cases in other provinces were:

Gauteng – 98.

KwaZulu-Natal (KZN) – 326.

Limpopo – 24.

Mpumalanga – 129.

Northern Cape (NC) – 3.

North West – 21.

Western Cape (WC) – 149.

 

Legal representation was provided in all cases. Districts with the highest number of land rights cases were Stellenbosch in the WC and Amajuba in KZN.  The central areas of the WC, the northern areas of NC, as well as the eastern areas of Limpopo experienced the least number of land rights violation cases.

R11 773 457 had been spent between August and October 2016. Maenetja Attorneys had been awarded the tender to manage the LRMF for a two-year period, starting on 1 July 2016. The firm had been established in 2003 and had divisions in labour law, conveyancing and notary public.

Discussion

The Chairperson commented there were more illegal evictions than the legal ones, and and asked why this was the case.

Mr Mhlongo said the presentation had not done justice to the Portfolio Committee, as the numbers in the annual report and the presentation did not tally. The R24m expenditure should be broken down. The Committee should be told if it was linked to the service provider. What did it entail? The balance sheet should be given in detail. How many tenure cases had been resolved?

The DG replied that this information would be provided to the Members. The key information on the status of the cases in the Courts would also be provided to the Committee

Ms Nxasana responded that the period the Department had been asked to cover was from 1 April till the present date. The period of 1 April to 1 June was covered by the previous law firm, Cheadle Thompson and Haysom (CTH). The close-out report would therefore cover that period. The comments and questions had been noted.

Mr Filtane asked how the service provider had free access to farm dwellers, who had said it was difficult to access legal services. The presentation had talked about legal and illegal evictions and cases. He thought it should have been ‘lawful’ and ‘unlawful’, as legality related to rights issues. What had made the Department to use ‘legal’ and ‘illegal’, as the use of a wrong word could change the complexion and the meaning of the report?

Ms Nxasana replied that the Department had taken note of that, as there was a need to be consistent in the use of terminology in the report.

Mr Fitane asked if farm dwellers were aware of the services of the Departments of Police and Social Services at the local level, so that they could easily access these services. He could not remember where the Department had made it known to the people that these kinds of services were available. What was the success rate expected for the kind of expenditure stated in the presentation. Did the contract make provision for termination if the DRDLR was not pleased with the success rate? Was there a ring-fenced budget for this unit?

Ms Nxasana replied that there was a ring-fenced budget in the contract for the administration and management of the contract, although it was not entirely accurate.

Mr Walters asked to what extent the LRMF got involved with Communal Property Association (CPA) activities. Would the LRMF claim it was accessible to all farm dwellers for them to gain access to legal support? What was the guarantee that if anyone had a problem, they would be accorded this facility?

Ms Nxasana replied that some of the CPA regularisation process fell within the scope of the LRMF. Justice was not done to it in this report, but it would be clearer when there was a close-out report of the CTH, as there would be an actual breakdown.

Mr K Robertson (DA) wanted to establish how much was spent per province, rather than just the total. What challenges had the previous service provider faced, so that lessons could be learned from their experiences?

Ms Nxasana replied that the Department would provide a breakdown of the expenditure report. The bulk of the money given to the service provider could be accounted for, but the Department would have to wait for the CTH, as part of the tenure period fell within the tenure of the CTH

Ms N Magadla (ANC) referred to the report, which said LRMF had been established in 2012. What had happened in 2008? Were there cases that had been left behind? The Department had promised to submit reports of cases regarding land tenure and restitution heard in the Constitutional Court. This had not been done till date.

Ms Nxasana replied that the Department would be glad to provide the progress of the cases that were outstanding in the Constitutional Court.

Mr A Madella (ANC) asked if the former service provider had been aware that the contract was coming to an end. The 692 cases obviously emanated from the former service provider, so why was there no close out report? How many panellists were there currently? Did it include people with disabilities? This information should be made available. The presentation had given no indication of how long the cases been in court. The Committee needed a detailing of all reports of cases in court.

The DG replied that the close out report was late. This was partly due to the fact that when the contract was coming to an end, it was extended for an additional six months as the Department did not want a vacuum. This, however, did not justify the delay of the report. There would be an ageing analysis of the cases that could not be provided in this report.

On the constitution of the panelists, Mr Mosagwa replied that the Department had received applications. The final list of those who had met the criteria would be submitted. The good response of the applications would make it easy to cover every corner of the country.

Mr Madella said there was a close relation between labour disputes and eviction cases. Was there consultation with the Department of Labour in order to develop a strategy to deal with this?

Ms Nxasana replied that the DRDLR recognised that there were connections with the Labour Courts. There was also continued leverage with the Commission for Conciliation, Mediation and Arbitration (CCMA) to conclude the labour contracts before finalising the issue of rights. The proposals had been noted, as well as the earlier proposal on the amendment of the land rights legislation. The service provider would assist with the issue of the amendment. The DG had already instructed that the service provider should be involved in this.

Mr N Matiase (EFF) said the Freedom Charter stated that “Freedom of movement shall be guaranteed for those who work on the land and livestock. All shall have the right to occupy the land where they choose.” This was a historical context. The success of the system would be measured on this basis. How had the Department sought to find common ground to mitigate against unlawful and illegal farm eviction? There should be prevention of illegal evictions from lawful occupation of farm land. The system, through the LRMF, had now buried its head in bureaucracy and hoped that when the head came out, the problem would have disappeared. It would never disappear until something proactive was done. The LRMF may not be an effective instrument to deal with the problem. Nonetheless, it provided the technicality of bringing all the stakeholders together to get the information to deal with the problem going forward.

On the lack of clarity regarding the terms of reference of the former service provider, he said there was a need for the baseline information. What had been presented today had been merely a universal view of what had taken place. There was a need for more of what the Committee could lay its hands on, to get a full grasp of the problem. How many farm dwellers had been evicted? What was the turn around time, as well as the success rate, in terms of the farm workers as well as the farm dwellers?

The DG replied that the issue of the “burying of the head in bureaucracy” would be left for the Committee to consider, as it was a political one. The Department would not respond to that.

Ms Nxasana said that the issue of the eviction of farm dwellers was definitely outside the law, as prospective owners were bound by farm dwellers. On the issue of statistics, she said this was a function of what got reported to the Department, and therefore to the LRMF. Part of the role of the Land Rights Management Committee, which would be set up going forward, was to be the eyes and ears of what happened on the farms. The Department would know timeously what happened on the farms and be able to intervene timeously. At the moment, the Department relied entirely on what was reported, and by that time people had already been moved from the Land.

Mr Nchabeleng said that at the last public hearing on the Extension of Security of Tenure Amendment (ESTA) Bill, there had been discussions that had centred on good lawyers and bad lawyers. The advice given by some lawyers to the farm workers had not been good. The LRMF had lost cases in instances where it was not supposed to, as there had been cases of selling out by some lawyers. Had the entity referred some of the cases to the Law Society for review?

Mr Jeff Sebape, Chief Director: Tenure Systems, DRDLR, replied that the Department had asked the CTH to submit a list of lawyers that were good, as well as those that were bad, so that the Department would know the lawyers to avoid going forward.

Mr Mnguni said the Committee wanted activists who had won cases in the defence of the poor, as well as on just causes. Though the Committee had not seen this in the profile of the new service provider, the service provider should use this opportunity to build a strong profile. The report had not indicated if it was an annual or quarterly report. What were the parameters? Though not a public servant, the service provider should familiarise itself with the PFMA, the Constitution, as well as other tools for a reporting format. The Department should develop a reporting tool for the entity. How was it possible that R11m had been spent in only three months? There were no projections, only numbers. The Committee wanted to see the actuals -- the targets as well as the variances. The LRMF should try to win 98% of the cases against eviction. The people feel unprotected. Claimants had gone to court on some days and the lawyers did not arrive. The cases per court must be analysed. There were opportunities to win more cases. The new service provider should feel the pulse of the people, because at present the people were living in squalor. They must represent the people. Presently, the people were troubled and perceived the service provider as among the elite. The Committee Members were worried, and did not like the situation on ground.

The DG replied that the new service provider had felt the pulse of the Members of the Committee, as it had a better understanding.

Ms Nxasana added that the breakdown of the budget would be provided. The Department would work with the service provider to provide a reporting format very much like the one used by the National Treasury.

The Chairperson asked how farm dwellers that had been assault were classified. In the public hearings, there had been cases of livestock being taken away from the people by farmers. The court had ruled that the livestock should be returned, but up to today there had been no report on this case to the Committee -- and this was a 2009 case.

Mr Mosagwa replied that not every case ended up with the LRMF. Some were co-ordinated at the provincial level. It was for this reason that the Department had established different forums that had access to the local community. This was in the hope that it would enable the Department to reach every occupier. He wanted to clarify the role played by the service provider, which was to monitor the allocation of cases and the performance of attorneys who were assigned by it. The service provider did not go to court, but appointed and coordinated the attorneys who were assigned

The Chairperson asked if the Committee could hear the voice of the new service provider.

Mr Ignatius Maenetja introduced himself as one of the directors of Maenetja Attorneys, which had been appointed by the DRDLR as the service provider for LRMF. They were legal, as well as insolvency, practitioners and had been established in 2003. Since their appointment as service provider in June, they had had interactions with the Department and some of the communities, and had found out that there were a lot of challenges. They had also had workshops, and as a result realised that the attorneys that would be assigned had to be in touch with the people, as well as be fully qualified. Attorneys who were not qualified had appeared again, so the service provider had to embark on training them. Some of the delays in the finalisation of cases could be as a result of the fact that the attorneys did not understand the law or were not working hard enough. As a monitoring tool, the firm would contact the affected communities to know if services were rendered and if they were happy with the services. It would check the documents and verify that they were in line with the law. It would be seen from the documents whether the attorneys were up to date in terms of their drafting, and if not so, there would be amendment. During the training, the firm would stress the importance of the attorneys winning the cases. The community had raised the issue of language barriers with the attorneys assigned by CTH in the last workshop. This would also be addressed. The firm believed that it would render good service to the Department.

Mr Mhlongo said the Committee wanted a presentation from the service provider.

The Chairperson replied that the contract was for two years, and there was enough time for a presentation. This had just been a general comment by the service provider.

Mr Filtane said he hoped his questions on whether the service provider had free access to the farm dwellers and whether there was a clause for the termination of the contract if the DRDLR was not pleased with its success rate, would be answered at the next meeting as the questions were very critical.

The Chairperson asked how the farm dwellers were accessed and protected.

Mr Nchabeleng said he did not think the Committee needed those answers now, as the Committee would want the Department to give very accurate answers when it was prepared.

The Chairperson said the Committee wanted to see the contract between the Department and the service provider. What was the service delivery model? People had been disappointed by the service rendered by the CTH, and the Committee had hoped the new service provider would be different. There was a need for all the stakeholders to work together and liberate the farm dwellers.

There had to be an improvement with the use of percentages. What was the meaning of illegal evictions being 78%?  78% of what number? There should be clarity, so that the people could have a good understanding. CTH should give the close-out account for the money that was given to them. The report on the breakdown of the expenditure should be submitted within 14 days from today. The issue raised by Mr Fitane on whether farm dwellers were aware of the services of the Departments of Police and Social Services at the local level, should be addressed speedily.

Mr Tshililo Manenzhe, Committee Content Adviser, said that the amendment of the ESTA was moving towards finalisation. All stakeholders would be meeting on 15 and 16 November in that regard.

Draft minutes of 2 November: Matters arising

Mr Mhlongo said it had been raised at the last meeting that the Department should submit a detailed report to the Committee on the Mala-Mala and Rama CPAs within seven days. This was captured on page 3 (7.3) of the minutes.

The Chairperson asked what the meaning of ‘seven days’ was. Was the weekend counted as well?

Mr Mhlongo said it was stated as seven days, and not seven working days. The weekend was included.

Mr Walters said he was in agreement with Mr Mhlongo.

The Chairperson said the deadline had expired today, since it was on 26 October that the DRDLR had been told to submit the report.

The DG said the report had been submitted to the Parliamentary office, but it had not gone through the due process of approval. This would be expedited. The Department would facilitate the provision of the terms of reference of the new legal team that would assist the LRMF, as requested by the Committee. It wanted to verify specific details before submitting the reports on the Mala-Mala and Rama CPAs, and would therefore need an additional day to finalise the report.

Mr Mhlongo said the truth of the matter was that the Department had failed to give the Committee a detailed report on the Mala-Mala and Rama CPAs within seven days.

Mr Mnguni said that he was in agreement with Mr Mhlongo, and it was a fact that the Department had failed. Oversight must be meaningful.

The Chairperson said the detailed report should be submitted to all Members of the Committee before the close of business on Friday 11 November.

The minutes were adopted, with some amendments.

The meeting was adjourned.