Extension of Security of Tenure Amendment Bill [B24 -2015]: further deliberations

Meeting report

The Chairperson said in the meeting held on 15 February 2017, there were deliberations on the ESTA as well as discussions on comments by stakeholders. The day's meeting was for further deliberations and a briefing from the Parliamentary Legal Adviser in order for the Committee to know the right direction to take.

Briefing by the Parliamentary Legal adviser
Mr Nathi Mjenxane, Parliamentary Legal Adviser, explained that the Extension of Security of Tenure Amendment Bill (ESTA) sought to protect persons whose land tenure was insecure. A recent court judgement had indicated that ESTA should not be one-sided. There should be a balance for both the farm owner and the occupier. Children and Women were the ones that were largely impacted by the loopholes in the principal Act. Through the work of the Committee, there had been extensive public consultations to get the views of all interested parties. The amendment Bill as it stood was not a conclusive response to all the issues. A review was taking place headed by former President Motlanthe that was looking into all legislations enacted since 1994. There might be a need for further amendments. Rule 286(4) of the National Assembly Rules said in the event that the Committee sought to amend provisions of the principal Act, it must seek the permission of the Assembly. Some of the issues raised in the deliberations last week could be provided for in a co-operative governance mechanism so that such issues could be resolved. Legislation did not have to be too elaborate before it could address procedural issues in the main legislation. There were overlapping issues between departments. There were certain issues that should not be in the  into legislation as a memorandum of understanding (MOU) could be used for example to ensure proper prosecution of illegal eviction, as well as to ensure that SAPS responded effectively to illegal evictions. This could be addressed through proper mechanism developed between interested departments via Committee oversight. He agreed with the issues raised by the Law State Adviser, Ms Bongiwe Lufundo, in a document which was circulated.

Ms Lufundo said the document referred to by Mr Mjenxane was the Department's responses to a public hearing which was deliberated in the Portfolio Committee and discussed with the Department. She agreed with Mr Mjenxane that if the Committee wanted to introduce new amendment, the Committee could do so with the National Assembly. Issues raised with regard to definitions, evictions, Land Rights Management Board, were issues of policies except for that of definitions and it was left to the Committee to say how it would go about it.

Discussion

Mr T Walters (DA) was concerned that not all interested stakeholders had made inputs. Stakeholders such as organised agriculture should have participated in this programme. There was need to have a planned approach in terms of producing the legislation. He was not suggesting that any of the inputs earlier made should be dismissed but believed some aspect of public participation was politicised.

Mr P Mnguni (ANC) thanked the legal unit of Parliament for its support. Public participation was a way of canvassing the views of the people. There was an agriculture stakeholder-agri base which participated. There was translation of language as a result of the local structure of the business people. There was a great participation. On the issue of politicisation, he asked what was politicisation and what was not. Seven days ago, a white farmer shot a tenant because he mistook him for a pig. ESTA was political to the core and it was difficult to draw the line. The meeting held by the Portfolio Committee last week discussed the broad view and today's meeting should be about the nascent points.

Mr Walters said a number of points were raised by Mr Mnguni. He asked if it was possible to produce for the Committee a comprehensive list of all inputs received and where they came from. The Committee would then be in a position to proceed and make up its mind.

The Chairperson said when the legislation was tabled in Parliament, a number of stakeholders and organisations participated. The door was never closed for any other stakeholder to make submissions.

Mr M Nchabeleng (ANC) said in order to save time, the Committee Secretary should be asked to read out the list of all organisations that were invited and advertisements posted. Some organisations responded only to issues that affected them. It was the responsibility of individuals and organisations to respond. There had been people from Agric SA.

The Chairperson said the Secretary should make that list available to the Members of the Committee.

Mr Mnguni said the meeting held on 1 February when the SA Human Rights Council (SAHRC), Public Protector as well as SAPS made presentations to the Committee, was the day other Stakeholders should have been suggested. There would have been no objections to that.

The Chairperson said the list of concerned stakeholders would be circulated but the Committee could not go to invite other Stakeholders as that stage was over.

Ms T Mbabama (DA) said Mr Walters' proposition was blown out of proportion as it was a simple request to get a list of all concerned stakeholders.

Mr Walters said he was not attacking the process. It was a basic exercise to fill the gaps so that the Committee would have an idea of who did not contribute. The request was not to take the Committee back but to get the information that would assist the Committee as Legislators.

Mr Mnguni said it was decided in a case in 2006 that any other future process beyond Parliament was a court of law. The 2006 court ruling was on the extent of public participation. The Committee had wasted one hour on only one item and it was unfair.

Extension of Security of Tenure Amendment Bill [B24 -2015]
The Chairperson read the objective of the Bill.

Clause 1
Mr Walters read the whole of Clause 1 of the Bill (Please refer to the Bill for details)

The Chairperson called for comments.

Mr Walters said on comments received from stakeholders, some of the stakeholders laid emphasis on the definition of family. He read Clause 1(c) which stated that " 'family' means the occupier’s spouse, and includes-.......". A wider definition had been catered for. It was not everyone residing but people that had a right as a family. He was happy with clause 1(b), " ' dependent' means a family member whom the occupier has a legal duty to support".

The Chairperson asked if Mr Walters was happy with Clause 1.

Mr Walters replied that he was happy.

Mr A Madella (ANC) said the laws of South Africa do provide for children in foster care. The Bill did not provide for this. Foster care was when someone was mandated to take care of a child, for example the children of a person's spouse.

The Chairperson sought advice from the legal Adviser and the Department of Rural Development and Land Reform (DRDLR) as well as the State Law Adviser.

Ms Lufundo said when the Bill said in clause 1(c) that 'family......includes', that meant that it was not limited to those people mentioned from (i) - (iv) so foster care was therefore included.

Mr Sello Ramasala, Legal Specialist, DRDLR, said it was clearer to include foster child because adopted child was specifically mentioned.

Ms Mbabama said she was in agreement with Mr Madella but it could be proved that there was a legal duty to the foster child since he was a dependant.

The Chairperson said there were now two views.

Ms Vuyiswa Nxasana, DDG, DRDLR, said the biggest issue was the definitions of a family. Another big problem was about who was covered by ESTA. Foster care should be included for absolute clarity.

Mr Mjenxane said foster care could be included for clarity but the phrase " who are dependants of the occupier and who reside on the land with the occupier" at the end of clause 1(c) already covered foster care.

Mr Madella said the farm owner could say for instance, who was this child? He only arrived yesterday and he was not there from the beginning. The addition of foster child would help avoid such situations.

Mr Walters said foster child should be included.

Ms Magadla said some legal gurus rely on details and specific words that were mentioned. If foster child was not mentioned specifically, there would be a problem.

Mr Mnguni supported the inclusion of foster child from a practical point of view. It was important to make deliberate emphasis. The practice on the farm was very horrible and many people were victimised. There should be a definite inclusion of the foster child so that from the onset the child was covered

Mr Walters said the Committee did not want issues that were not well defined. It should be phrased as ‘a foster child to whom a demonstrable legal duty existed.'

The Chairperson said it should just be foster care child because grandparents, for example, were not defined.

Mr Walters said that there was a difference between grandparents and foster child. In the case of grandparents, relationship could easily be proved.

Mr Nchabeleng said the Committee should leave it only as foster child.

Mr Mjenxane said foster child was defined in the child regulations and the Committee should be careful not to have new definitions.

Ms Lufundo said foster care child should be included after adopted child in clause 1(c)(ii)

Dr Tshililo Manenzhe, Content Adviser, Parliament, asked when this legal duty to the foster child ended. What happened to that child when the legal duty ended? Could that person be evicted?

The Chairperson replied that this was another issue entirely as a child was to leave the farm when he turned 18 years.

Mr Mnguni said the social support systems were supporting the child. Was there the issue of eviction after the age of 18 years in the Bill. If that was so the Committee would like to eliminate it all together.

Mr Walters said the legislation was meant to protect people that the Occupier had a legal duty to support. The Committee should be careful not to move into that terrain where legal duty within the family was confused with legal duty within the farm for example to the labour tenant. It could not have been the intention of the legislation to give rights to someone who had no relationship with the Occupier.

Ms N Magadla (ANC) referred to the phrase " who are dependants of the occupier and who reside on the land with the occupier “at the end of clause 1(c) and said the Committee must look at the prevailing culture of the People of South Africa. In the culture prevalent in South Africa, if your son was 18 years old and you had no money to buy him a flat, he would continue to live with you and you would not send him out to go into the streets.

Mr Madella said the key word here was 'dependants’. In this definition, a child was just one of those that were dependants of the occupier. If there was a case in the court of law where one who was 18 years had been ejected from the farm, then there would be a precedent. In the current legislation, there was nowhere it was stated that a child should leave the farm once he was 18 years.

Mr Nchabeleng said the question of age did not fit because there was no grandfather who was 18 years old. The Parliament was making laws in Africa and not in Europe. His child remained a child until he was old enough to say that he was moving out of his father's house. He had responsibility towards his child.

Mr Mnguni said the Committee should thank Dr Manenzhe for raising the issue. The issue of age had not featured anywhere. In response to Mr Madella, there was a precedence. It was tested in the Constitutional Court case which was decided in 2013 where it was held that the right of the occupier must be balanced with that of the owner. There should be more advocacy around this ruling. He added that clause 1 (g)(a) was blank.

Mr Ramasala replied that leaving Clause 1 (g)(a) blank was a simple drafting process. The dots were also in the principal Act. All that the definition was seeking to do was to delete the words" has or" in line 20. The rest was as it appeared in the principal Act.

The Chairperson thanked Mr Ramasala for the clarity.

Mr Walters asked if he could comment now or later as party position was determined by caucus.

The Chairperson said the Committee had agreed. Mr Walters was free to take it to the caucus if he so desired.

The Chairperson said the Committee had agreed on the definitions in clause 1 except the inclusion of foster child.

Mr Mnguni moved for adoption and was seconded by Ms Magadla.

Clause 1 was adopted.

Clause 2
Ms Mbabama read the whole of Clause 2 of the Bill (Please refer to the Bill for details)

There were no discussions.

Clause 1 revisited

Mr Ramasala pointed out there was an issue raised about partners that lived together but not married. Were such people included in the definition of family under clause one.

Ms Mbabama said it was covered by the clause whether or not the marriage was registered.

The Chairperson said the legal group of the DRDLR, Parliament as well as the State Law Adviser should check it and advise the Committee in the next meeting.

Ms Magadla said she was in agreement with the Chairperson on the last point.

Mr Mjenxane said marriage was the defined. The legal group would make consultations regarding people living together and come back to the Committee.

Mr Filtane said in the last meeting, he raised a point that farm Occupiers regarded their residences in the farm as their home and therefore suggested that the Bill should define what was regarded as home. In clause 1(g)(b), there was an exception that the occupier may not use portions of the land for farming purpose. This would make the occupiers vulnerable for eviction as the farm owners would say the occupiers were using the land illegally.

Mr Walters said it was covered for the people to use the land for domestic farming purpose.

Mr Mnguni said the Committee was in a procedural mess and the legal team should streamline everything for the Committee. Clause 1 should be rested and perhaps could be reopened in the future so that the Committee could proceed. The legal team should give a structure so that the Portfolio Committee would not have to go to and fro. The lack of organisation of the legal team should not affect the Committee. There should be procedural smartness.

The Chairperson said when a clause was tabled for discussion, anyone was free to raise their hands for any legal advice. The Legal team must avoid taking the Committee back to clauses that had already been concluded and rested.

Mr Mjenxane said the procedure was that a Member read amendment in the Bill. There were deliberations on that and if there were no issues there would be adoption of that session. If there were proposed amendment, the Committee would continue to visit the list of amendment for fresh ideas.

Clause 3
Ms C Matsimbi (ANC) read Clause 3(a) of the Bill (Please refer to the Bill for details)

Mr Filtane said he had issues with Subclause (a)(dB) " to take reasonable measures to maintain the dwelling occupied by him.....". He had issues with the word reasonable as it may mean different things to different people. He suggested that 'sufficient measures' should be used rather than' reasonable'.

Ms Mbabama said both words were too open ended and should be tightened. To use the words "maintain in the condition in which it was at the beginning” was more appropriate. There was need for the Committee to think more about it.

Mr Walters said it was difficult to find a word that narrowed it down. What was the typical obligation of the tenants? The Committee should go for the word 'maintain' as suggested by Ms Mbabama.

Mr Nchabeleng said during the public hearing, it was heard that some owners demolished existing structures and built one bedroom structures for the Occupiers. This must be addressed by the Department of Human Settlements. It had to be standardised, if not, the Committee should include " farm workers should have the right to erect houses as well as maintain it".

Mr Mnguni said Clause 3(a) was where the occupiers were hurting the most as they were not allowed to build structured houses. This clause had not come to the rescue of the people because the burden was on the Occupier. Reasonable measure meant something that was adequate as well as sufficient. 'reasonable measure' was adequate. If 'sufficient measure' was used, many occupiers could be evicted on the argument that the measures were not sufficient.

The Chairperson said the Minister of Rural Affairs and Land Reform, Mr Gugile Nkwinti, had said in the last meeting that farming by the occupiers was not for commercial purposes and Ms Mbabama had also said in the last meeting that the occupiers should not stay on the farm forever but be transferred to their own land.

Ms Nxasana said the one issue addressed by this clause was the right as well as the duty of occupiers. It talked about the right to reside. Reasonableness talked about balancing act between the rights of the owner and occupier. What was the reasonable thing that the occupier could do to make the farm liveable? This claluse talked about giving grants to the person residing on the farm to give reasonable changes to his residence like proper windows, flushing toilets. The Occupier should be in a position to say this was what he needed on the farm.

Mr Ramasala said it was a right to maintain the dwelling instead of a duty.

Ms Lufundo supported the above submission. It was a right and not an obligation. If it was read in isolation of cession, it was an obligation but if read in the context of the cession as a whole, it was a right.

The Chairperson asked if the legal team insinuated that the 'reasonable measures ' should be maintained

Ms Lufundo replied that yes it should be maintained so that the right of the occupier could be balanced with that of the owner.

Ms Mbabama said Ms Nxasana talked about grant and asked where the grant was featured in the Act so that it could be used as a back drop.

Mr Mnguni asked how something that was dilapidated could be maintained. In 95% of the cases, it was the people building for themselves. Only 5% had houses that were there before. The Minister had agreed that the DRDLR would look at a scenario of expropriation with equitable compensation. The Committee would take the clause 3(a) but it was not transformative. The Committee would come back to talk about the development of dwellings and residential areas on the farms with the Minister.

The Chairperson the Committee agreed to maintain clause 3 (a) as it was.

Ms Matsimbi read the Clause 3(a) of the Bill (Please refer to the Bill for details)

Mr Filtane said he had a concern with the content of Clause 3 (b)(4) which said " any person shall have the right to visit and maintain......a tombstone on....of work on the land ". Giving a right to any person to erect a tombstone on a land that belonged to another sounded very outrageous unless he was missing the content. It would have been helpful if the support staff provided the original Act as he could not remember what the 1997 piece of legislation was. This had made the job of the Committee rather difficult. The process was the reason why he had a concern with the content. The words of the 1997 piece of legislation and the current Bill should have been in different colours to differentiate the two legislations.

Mr Madella said the only difference between the original Act and the Bill were the words underlined. The support staff did not have to give the original document to the Committee. The Committee should rather research and get the document. In the public hearings, some of the people complained that they had been denied the rights to visit and perform rights on the graves of family members because the said complainants no longer lived on such lands.

Mr Mnguni said to safeguard the dignity of the dead was the reason for the clause. He supported the clause because up till now, people could not erect tombstones. The clause was balanced. He supported the adoption.

Mr Walters said he did not think any of these was unreasonable or controversial.

Mr Nchabeleng was happy that there was agreement to leave that clause as it was.

The Chairperson asked if the Committee agreed on clause 3(b)

Mr Filtane said he did not agree with the phrase " any person" . There should be some qualification for the person given this right. If the majority supported, he would succumb. It should be on record that he had objected.

The Chairperson said it was only those who were related to the deceased who would want to erect tombstones. No person who was not family would want to do that.

Ms Mbabama said there was no answer on the content of grant.

Clause 4

Ms Nxasana replied that clause 4 spoke to the issue of grant and who was qualified. To visit and maintain graves meant that there was a structure that was being maintained.

On the issue raised by Mr Filtane, 'any person' was any one who had a claim on graves or anyone who had been buried there.

Minutes of 15 February 2017
The Chairperson tabled the draft minutes of the 15 February 2017.

Ms N Magadla (ANC) said Ms Mbabama had raised an issue about the need to find alternative land for the farm dwellers and it was not captured in the minutes.

The Chairperson person said it was not possible to state in the minutes what every member had said as only very important points were handpicked.

Mr T Walters (DA) said the phrase ' with the hope....'  was not strong enough and should be replaced by 'with the agreement 'on bullet point 6.3 (pg. 3). Key questions and answers on the scope the legislation would cover were not mentioned in the minutes.

Mr Filtane said the Committee was dealing with crucial legislation. The minutes understandably were in summary but were too short. The minutes hardly reflected the comprehensive discussion that took place on  that day. How would proceedings be recorded going forward?

Mr P Mnguni (ANC) agreed with the points raised by Mr Walters as well as Mr Filtane. There should be a way to capture minutes going forward. The minutes were very vague and should be captured the same way the Parliamentary Monitoring Group (PMG) captured its minutes. Minutes should reflect the records.

The Chairperson said this had been noted and there would be improvements. On the issue raised by Mr Walters, indeed the word " hope "did not carry the required weight and should be changed.

The minutes were adopted with amendments.

The Chairperson thanked everyone for the contributions. The meeting had to come to a close as the support staff had to attend a Parliament briefing and they were running late. The Committee would look at the resolutions that were taken which were implemented by the Department as well as those that were not implemented so there would be a follow up.

The meeting was adjourned.