Alexkor (Richtersveld) and Safcol land claims challenges: DRDLR briefing; Deputy Minister Rural Development present

Meeting report

Deputy Minister Rural Development and Land Reform briefing
Mr Mcebisi Skwatsha, Deputy Minister of Rural Development and Land Reform, welcomed the invitation and noted that the State of the Nation Address (SONA) had emphasised the connection between land and radical economic transformation. He then went on to introduce the team from the Department of Rural Development and Land Reform (DRDLR or the Department).

Safcol land reform progress: Commission for Restitution of Land Rights
Mr Thami Mdontswa, Deputy Chief Land Claims Commissioner, Commission on Restitution of Land Rights, spoke about the purpose and vision of the Commission (or CRLR). He took the Committee through the process of land restitution, which has four major phases: lodgement and screening, then gazetting, then investigation, and finally negotiations and settlement. Most of cases are currently in the fourth phase. Post settlement development funds have been made available to those who had their land restored to them. In total the Commission had ‘restored’ 3.3 million hectares. R4.2 billion has been given to those who were given their land back to help them develop the land.

He then explained that Safcol operates forestry on land that is mostly owned by the state. The lease agreement had its origins just after 1998. The claims that were launched in 1998 affected 61% of the land used for forestry. There are still eight claims in the investigation stage, 24 in the negotiation phase and five that had been settled. There may be three families, but the Commission consolidates those three claims into 'one claim one farm’. There are other claims that affect Safcol indirectly, but the Commission had decided not to deal with those claims.

Given that the land claims affect 61% of Safcol’s forestry they clearly needed to be handled correctly, as it could lead to the end of Safcol if not. In 2008, the principle was approved that when dealing with forestry areas, ownership of the land should be restored, but the trees should not be given to the people as well. One of the solutions that the Commission was looking at was a lease rotation model. There were problems with the lease rotation model, especially when Safcol was growing pine trees (given the length of time to harvest). The second possible model was a strategic partnership model from the beginning, between the company and the claimants.

The Commission preferred the strategic partnerships model, as this would envisage that the state buys a percentage of the plantation. A new business then emerges that has the claimants as shareholders. However, there were some problems with this approach as well, however, because there are currently 27 claimants, thus Safcol would have to essentially have 27 subsidiaries. These partnerships needed to have tangible benefits, transparency, accountability, transformation and risk management. Contracts for the management of the timber would be made available to the communities and they would be able to to start up timber management businesses slowly. The Commission had a framework on the possible implementation and there was investigation into whether the community was capable of making a forestry management business work.

The Safcol board preferred the lease-back model as opposed to the strategic partnership model. The Minister of Public Enterprises had said to Safcol that the lease back model was not acceptable. The Commission then went back to try to group the claims together and create subsidiaries with the communities.

Finally, he presented the statistics of the outstanding claims (see attached presentation for full details).

Discussion
The Acting Chairperson thanked the Commission for the presentation, but said that it looked like there was still some way to go.

Ms D Rantho (ANC) echoed the Chairperson's remark. She went on to ask why, given the resources that the department of rural development had, had it taken so long to reach a solution to this problem. She asked what happened to the land during the lease periods, and whether the communities still benefitted from the land in some way. She asked if the negotiation period was open-ended or if there were some deadlines. She asked for the reasons why it was thought that only the land should be restored. She asked the DRDLR to implement continual training and upskilling on timber management. Safcol had mentioned to the Committee that it was finding it very difficult to work with the Department of Rural Development and she wanted to hear from the Department on that point.

Mr Z Luyenge (ANC) thanked the Commission. He asked how long a claim could take before it is concluded. In terms of the Department's industrialisation programme he asked what is being done to educate the communities about the productive potential of their land, especially forested land. He also asked if there was any legal recourse to challenge and end the current lease back model that sees individuals in possession of land for far too long. Land claims often include land that is in the urban area and even if the claimant is claiming land that ‘belongs’ to the municipalities then it must still be given back to the public (claimant). He asked what was being done to protect claimants from being extorted by opportunists.

Mr R Tseli (ANC) asked about the Richtersveld issue.

The Chairperson asked that these questions be held back under after the presentation on Alexkor.

Mr Tseli asked to what extent to the claimants would contribute towards the type of model that they will be implementing. He asked to see the total amount for the claims launched in every province and then how many have been settled, so that he could see any improvement or lack thereof.

Ms G Nobanda (ANC) asked how far the Department was in developing the strategic partnership model and how involved the community was in this process. She also asked about the issue of land ownership, but not ‘tree ownership’.

Mr Skwatsha responded that the process of land restitution was extremely complex. The time that is taken to process a claim varied because each claim is different and complex. The Department was also unhappy about how long the land restitution process takes and how much in-fighting there is among the beneficiaries. He spoke about the lack of an active citizenry in South Africa today and related to this problems of community property associations. The Department offers training on how to use land and make it work, not only for the owners themselves, but also for other children of the community members. There is an interesting problem when it comes to municipalities developing land that belongs to claimants, because that land does not belong to the municipalities, yet there are also demands from public about developing that land. There so many aspects that complicate the finalisation of the claims. However, he asserted that government could and should make decisions that could untie the Department's hands in relation to  issues raised by Members.

Mr Mdontswa said that claims often sit in the negotiation phase for a long time. He mentioned that the 1975 Expropriation Act does line up with sections of the Constitution and that when there is a new Expropriation Act claims should be processed with more speed. The agreement with Safcol was that it would be dealt with separately, given that Safcol is not like the other big players in the industry. It was government's decision to buy the land and not the trees. This decision was made because there would have been very little land reform and land returned, if the government had to deal with the trees as well, as it would be close to four times the cost. The model that the Commission presented is a model for commercial timber.

He confirmed that the Commission's training was continuous; it takes the form of bursary funding that allows the community members to upskill themselves and pay for tertiary education if needed. In relation to Safcol land in particular, the Commission had not settled many claims at all, but the few that it had settled were monetary compensation settlements. The current CEO and the Commission exchanged letters, and the Commission meets with Safcol regional management quarterly. The Commission is always present when communities go and occupy the land that is being claimed and they advise the communities on the different ways forward towards having the land restored. The Commission unfortunately spends more time on settling in-fighting disputes than it does on processing new claims. The environment that the Commission was working within was becoming increasingly hostile. He confirmed that Hans Marensky is now a fund and owns plantations from the Dargle Valley to near Mthatha. However, he confirmed that there was progress both on land restitution and the formation of the Hans Marensky company. He further explained that if the option of a strategic partnership is pursued, then there is no 70-year waiting period and that was why it was decided to pursue the strategic partnership model. In terms of the progress of the Commission, he confirmed that it had completed 15 000 claims.

Richtersveld Land Restitution Claim and Alexkor progress
A member of the CRLR briefed the Committee on the Richtersveld land Restitution Claim and Alexkor. A claim for restoration of rights in land lost was lodged on behalf of the Richtersveld community before the closing date of 31 December 1998. That claim was referred to the Land Claims Court and a settlement proposal was presented to Cabinet for approval. The Minister of Public Enterprises had engaged with negotiations. Approximately 2 630 beneficiaries were verified in towns in Namaqualand, Kuboes, Sanddrift, Lekkersing, Eksteenfontein and Alexander Bay. The verification was undertaken by the community leaders. In October 2003, the Constitutional Court had concluded that the real character of the title that the Richtersveld community possessed was a right of community ownership under indigenous law. That included the rights to exclusive occupation and use of the Richtersveld by members of the community.

The negotiations eventually culminated in the signing of a Deed of Settlement and a Memorandum of Understanding with Alexkor in 2007. This directed that at least two trusts and a number of companies must be established to manage and operate the various business operations of the Community Property Association (CPA). The Richtersveld Investment Trust is the sole shareholder in the Richtersveld investment holding company (RIHC). The income from the RIHC is to be distributed, in terms of the distribution policy, to the CPA members for educational programmes, entrepreneurship and social development.

The Richtersveld Community Trust was established. It has 100% shareholding in the Richtersveld Self-Development Company (RSDC). The RSDC has four subsidiary companies, namely: the Richtersveld Agricultural Holding  Company (RAHCO), the Richtersveld Property Holding Company (RPHC), the Richtersveld Mining Company (RMC) and the Richtersveld Environment Rehabilitation Company (REHC). Opportunities were identified by the CPA to ensure that environmental damage was repaired and further restricted in the area.

Financial compensation made available by the Land Claims Commission was transferred to the Richtersveld investment holding company (RIHC) as follows:
- R50 million was transferred for recapitalisation of the agriculture and cultural properties or for other developments which would benefit the CPA members.
- R190 million was transferred, to be grown and invested in terms of an investment policy, and to provide an income for the Richtersveld investment trust
- R45 million was transferred to the CPA for property development by Richtersveld Property Holding Company, but which was to be managed by the RIHC.

The Richtersveld community trust is obliged to distribute/disburse the income from the Richtersveld Self-Development Company to CPA members.

She outlined the status of claims since 2011

The  Richtersveld Sida! Hub Community Property Association (CPA) has, since its reconstitution in July 2011, consisted of two factions – those who had opposed the previous CPA, and those who   were on the CPA executive committee in 2010. The Office of the Regional Land Claims Commissioner in the Northern Cape and the Department of Rural Development and Land Reform had, from 2011 onwards, been trying to implement a programme to regularise the situation. Concerted attempts were made to align the CPA and the community around a common goal and to unite the various factions. The CPA was now generally complying with the CPA Act, except for regular communication with the general members of the CPA. The term of office of the CPA executive members had expired and an elective AGM had been planned for April 2016. However, the CPA was unable to convene due to a lack of resources.

The Department of Rural Development and Land Reform will facilitate a meeting with the interim committee members at Alexander Bay in February 2017, and then later with the broader Richtersveld Sida! Hub CPA community in the four towns of Kuboes, Lekkersing, Eksteenfontein and Sanddrift. A number of engagements were held with the two factions and their legal representatives in order to resolve the impasse, but the rift between them seems to be widening again.

She noted that certain recommendations had been made. A task team was to be established between DRDLR and the Department of Public Enterprises (DPE), led by Land Tenure Administration. A rescue / communication plan must be compiled by an independent panelist or transactional advisor and should consider the key elements of a governance enhancement programme which goes beyond the Richtersveld mining company and the CPA. It was recognised that all the institutions need to cooperate and align themselves, in the interest of improving the livelihoods of the Richtersveld community. All the structures established by the settlement agreement must be rationalised.

The DRDLR would now either request the Land Rights Management Facility to nominate a panellist to serve on the CPA, or the Department would make that nomination itself. The DRDLR and the DPE would continue to work in collaboration to resolve the strife within the community and to workshop the amendments to the Deed of Settlement. The DRDLR and the DPE should now draft terms of reference for the appointment of a project management team which would include a transactional / institutional advisor to try to resolve the issues and tensions between all the structures. This team would then work with the panelist to resolve the unrelenting conflict within the CPA structures and the community at large. The project management team should compile a training schedule to upskill the CPA executive members. Finally, a community meeting must be held, at which both the Ministers of Rural Development and Public Enterprises would be present, at the earliest opportunity, in order to communicate this action plan.

Discussion
Dr Z Luyenge (ANC) asked what the strategies were to stop people from seeking ‘greener pastures’ during this protracted infighting.

The Acting Chairperson emphasised that the two ministers needed to talk to the communities urgently, because the infighting was impinging on the whole process and many community members were not benefiting at all from the successful land claim.

Mr Tseli asked which CPAs in particular were fraught with the in-fighting, and with which the two ministers would be meeting. He recommended that a progress report be presented to the Committee after such meeting.

Ms Georgina Gantana, Director, Northern Cape Department of Rural Development and Land Reform Provincial Shared Service Centre, said that the Department needed to come alongside the claimants and encourage them, assuring them that although the claim was taking a long time the Department had not forgotten about them. Officials from the Department had already visited Alexkor and the Department was hoping to have the report on that visit very soon.

Mr Mdontswa said that it would always be difficult for one unified CPA to emerge when there were multiple communities involved. The Minister had started working on a proposal to change the fact that parliamentary involvement was needed to settle anything to do with the Alexkor claim.

Ms Gantana added that part of the problem was that the Department lacked sufficient personnel. Much of the resources of the Northern Cape were being directed into post-settlement work, such as CPA dispute settlement and management. Alexkor had been causing division in the local community for a long time. Alexkor tended to do things such as working on one community member's house and not the others, seemingly at random, and it didn’t explain why to the others. Alexkor had resisted the Department on multiple occasions and the Department still needed to improve its relationship with Alexkor. Alexkor had also still not paid rental of R45 million to the property owners (the community), even after Minister of Public Enterprises Ms Lynne Brown urged it to pay. Ms Gantana felt that political intervention was needed on the Alexkor claims.

Mr Tseli recommended that the committee members go to Alexkor and see for themselves the issues that were raised during the meeting. Other Members agreed.

The Acting Chairperson thanked the Department and hoped that solutions could be found following the meetings. She would look forward to a further meeting between the Committee and the two ministers to discuss the issue of Alexkor.

Adoption of Committee Programme
Members adopted the programme.

The meeting was adjourned.