The Committee met to deliberate further clause by clause on the Extension of Security of Tenure Amendment Bill [B24-2015]
Clause 4 sought to amend section 9 of the principal Act. The main point of debate was whether an occupier or any other party involved in the eviction would not be prejudiced by refusing state legal representation. The Legal Advisor clarified that the content of the clause simply said that a court order could not be issued for an eviction of a person who was an occupier in terms of the principal Act if that person did not have legal representation. The principal Act made it compulsory for an occupier to be represented unless in the eyes of the court there would be no prejudice in the absence of said legal representation. The DA reserved its right on the clause and the UDM did the same in respect of clause 4 (1) (b) (ii).
Clause 5 sought to amend section 10 of the principal Act. In this provision, Members asked if mediation and arbitration were considered and what timeframes would be attached to the processes.
It was clarified that the provision of alternative dispute resolutions was not a subject of the amendment. Therefore, the Committee would have to seek the permission of the House to add it in that perspective. However, as a principle, alternative dispute resolution had to be made very clear to mitigate potential prejudice on those involved in the process. Additionally, it was important that those involved did not run to the courts first, without first trying other cheaper means of resolving matters as a principle. The empowering provision for support in the principal Act for regulations as it currently stood; had been wide enough for the Committee to resolve that regulations on how to engage dispute resolution provided for in sections 21& 22 in the principal Act; should have been a procedure to outline the process in the regulations. Further, the difference between mediation and arbitration was that arbitration was binding and DRDLR had been using, both for the Bill and the Land Reform (Labour Tenants) Act, arbitration rules of the Land Claims Court. There had been an arbitration panel that had been established with the establishment of the Land Claims Court so that when mediation failed parties could be taken to a binding process which would still be cheaper than having to go to court. The Committee supported the clause.
Members agreed to the amendments proposed for clauses 6 and 7.
On Chapter IVA, there was discussion on the composision of the board – size and gender breakdown. There was disagreement about how big the Land Rights Management Board should be. Some said this should be determined by the Minister, other said it should have no leass then 7 members but no more than 11 and others felt it should compise of more members. The Committee support staff were asked to look at what numbers were normally used in similar boards and this matter was deferred.
There were further discussions and agreement about the functions of the Land Rights Management Board, the remuneration of board members, disqualification, removal from office, and support to and reports by the board.
Extension of Security of Tenure Amendment Bill [B24-2015]: deliberations
Ms W Magadla (ANC) read out the clause.
Mr T Walters (DA) said his concern was that the underlying assumption in clause 4 was that the property owner would be someone who could afford legal representation which was not so in all cases. He asked if the provision could not apply to any party. Therefore, the court had to be satisfied that the occupier or any other party involved in the eviction would not be prejudiced by refusing state legal representation - which legal representation would have been in the interest of justice had it been accepted.
Mr M Filtane (UDM) wanted to know why all the provisions in the principal Act were being substituted with clause 4. He also had concerns with clause 4 (b) (ii) arguing that it would not be fair for a judicial officer to determine in an occupier’s absence whether the interests of justice would be harmed or not.
Adv Sello Ramasala, Legislative Specialist, Department of Rural Development and Land Reform (DRDLR), replied that clause 4 only replaced subsection 1 of section 9 in the principal Act as subsections 2 and 3 remained unchanged. Clause 4 was an addition rather than a replacement.
Mr Nathi Mjenxane, Legal Advisor, Parliament of South Africa, said the content of the clause simply said that a court order could not be issued for an eviction of a person who was an occupier in terms of the principal Act if that person did not have legal representation. The principal Act made it compulsory for an occupier to be represented unless in the eyes of the court there would be no prejudice in the absence of said legal representation.
Mr Filtane maintained that he was still dissatisfied with clause 4 (b) (ii) as the Committee heard how difficult it was, during public hearings, for occupiers to access justice and the way the subsection had been drafted bordered on unconstitutionality in a sense.
Mr Walters said he had received an answer to his question as the impression the clause gave was that occupiers or owners would only be commercial farmers; he wanted to know what would happen if the dispute was between a land owner and an occupier in a small holding in deep rural areas. He repeated his proposal that all parties be legally represented at the envisaged proceedings where said court order would have been issued whilst the same principle would hold. Regarding Mr Filtane sentiments, he said one had to be careful in legislation to try and accommodate for every single eventuality. The kinds of comments the Committee had received in the public participation drive on the amendment Bill were not the kinds of challenges that could be sorted out with legislation. The challenges occupiers faced with particular judicial officers were for the Department of Justice and Correctional Services (DoJ&CS) to sort out.
Mr A Madella (ANC) disagreed with Mr Walters that the amendment Bill assumed the land owner was someone who could afford legal representation. The Bill and the principal Act targeted security of tenure. He also understood Mr Filtane’s perspective but clause 4 (b) (ii) had been counter balanced by clause 4 (b) (i). Therefore clause 4 (b) (ii) could not be taken out.
Mr M Nchabeleng (ANC) said that in criminal procedure when someone was given a state lawyer and they refused state assistance; that individual could not compelled to accept such legal representation or administration of justice be delayed because an individual chose to defend themselves in a court of law. He agreed with Mr Madela that the provision was in order.
Mr Mcebisi Skwatsha, Deputy Minister of Rural Development and Land Reform, said a month ago an accused had told the court he did not want state legal representation and that he would represent himself. He agreed with Mr Madella’s assertion that clause 4 (b) (ii) had been counter balanced by clause 4 (b) (i). The amendment Bill was biased towards protecting farmworkers in primary.
Mr Walters said he was looking at the amendment Bill from the perspective of whether it would be applicable 20 years in the future. Though the intended outcome was the bias towards the vulnerable; bias in the legislation itself had to be avoided. What had been said did not take away the need for legal representation or strengthening the role of the vulnerable if parties relevant in the legislation were considered. Would it be just for tenure rights if land reform became successful? Going forward there certainly would be small land owners, communal property associations (CPAs) that would be unable to afford legal representation?
The Chairperson reiterated Mr Madella’s sentiment that the amendment Bill was aimed at extending the security of tenure of occupiers, farmworkers and all other vulnerable groups.
Ms Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Advisor, said the amendment had to be read with the principal Act. Section 9 in the principal Act heading read ‘limitation on eviction’ and that brought down the exceptions and what had to be considered before an occupier could be evicted; thus the amendment read that an occupier could only be evicted subject to the conditions laid out. In terms of the land owner not being catered for; the owner would have in the first instance be the initiator of the eviction. There was also the Legal Aid Act which allowed all citizens to get legal representation including land owners.
Clause 4 stated that the occupier could only be evicted on the conditions set out in subsections (1) (a) & (b). The exception to both subsections would then be (b) (i) and (b) (ii) where the court would determine as it always does the interests of the vulnerable in the first instance, but the interests of justice then also would be considered where an occupier would have to waive their right to legal representation.
Mr Filtane asked what would happen when the court determined that the occupier would be prejudiced by the lack of legal representation; could the court compel the occupier to accept representation.
Mr Nchabeleng said as clause 4 (1) (b) (ii) outlined; an individual could not be forced to accept legal representation when he/she had determined that they could represent themselves. That was why courts first showed an accused the importance of legal representation and if an accused refused legal representation he/she would be told that there would be no turning back once proceedings started.
Mr P Mnguni (ANC) said in 1998 he had been a chief executive at a municipality and had appeared before a magistrate’s court. There had been two mischievous female employees who had laid charges against him and his assistant that they had assaulted said female employees. He and his assistant had been quite sure of their facts and wanted to defend themselves in the matter but the judicial officer had insisted that they get get legal representation. Taking that into consideration he imagined a judicial officer in a rural farming environment who was conservative; the person being evicted being somewhat less illiterate as Mr Mnguni had been in 1998. Therefore if the judicial officer were to ask that occupier twice as to their certainty about representing themselves and said occupier waived his right to state legal representative, the outcome probably would be eviction. He preferred that occupiers have legal representation however sure they were of their cases, especially the vulnerable.
Mr Walters said the DA would reserve its vote on clause 4.
Mr Filtane said he disagreed with clause 4 (1) (b) (ii).
The Chairperson noted both the DA and UDMs reservations.
Mr Madella read the out the clause.
Mr Nchabeleng said he agreed with the provision and said clause 5 (e) spoke to the processes which would have been followed before clause 4 of the amendment Bill.
Mr Walters asked where mediation and arbitration would have started as they could be ongoing continuously and would not be serving the interests of justice. How were they envisaged and was there a timeframe attached to those processes?
Mr P Mnguni (ANC) needed clarity on whether arbitration and mediation would precede the court action.
Mr Filtane asked if ‘attempted’ as read in that context meant mediation and arbitration would have taken place or it had been tried without success.
Mr Madella said it could be assumed that in the regulations there would some clear provisions as the principal Act indicated a call to the Director-General (DG) or a written request. As outlined in the amendment the ‘or’ from the principal Act had been removed and there was an addition of (e). Sections 21 & 22 of the Act also had not indicated any length of period for mediation and arbitration. Possibly the DRDLR could make regulations in that regard because it would not be necessary for those details to be written into a law.
Mr Walters said the reason he had asked about a timeframe for mediation and arbitration had been that such a timeframe had been included in the Expropriation Bill. What in terms of practice would be understood as mediation and arbitration and how would it be prevented from becoming unnecessarily lengthy?
Adv. Ramasala said there were no specific timeframes set even in the principal Act as the aim was to deal with practicalities of an evolving situation. Mediation and arbitration were a facility in-between; before the evictor and evictee went to court.
Ms Vuyiswa Nxasana, Acting DDG: Land Tenure and Administration, DRDLR, said the amendment required that mediation and arbitration be attempted as court proceedings could be expensive. The matter of including ‘attempted’ was that mediation was a voluntary process where parties attempted to resolve their dispute in an amicable manner. Her proposal in terms of timeframes would be the inclusion of ‘as prescribed’ as mediations could be long so that in the regulations a timeframe could then be set. In the Land Rights Management Facility (LRMF) there was a timeframe where lawyers or mediators when they were put on terms they would be requested to provide a timeframe and an action plan and a timeframe. The provision was an attempt to provide dispute resolution so parties could still find amicable means of resolution; though if that failed the next step would be followed.
Mr Mjenxane said that the provision of alternative dispute resolutions was not a subject of the amendment. Therefore, the Committee would have to seek the permission of the House to add it in that perspective. However, as a principle, alternative dispute resolution had to be made very clear to mitigate potential prejudice on those involved in the process. Additionally, it was important that those involved did not run to the courts first, without first trying other cheaper means of resolving matters as a principle. The empowering provision for support in the principal Act for regulations as it currently stood; had been wide enough for the Committee to resolve that regulations on how to engage dispute resolution provided for in sections 21& 22 in the principal Act; should have been a procedure to outline the process in the regulations.
Ms Nxasana said the difference between mediation and arbitration was that arbitration was binding and DRDLR had been using, both for the Bill and the Land Reform (Labour Tenants) Act, arbitration rules of the Land Claims Court. There had been an arbitration panel that had been established with the establishment of the Land Claims Court so that when mediation failed parties could be taken to a binding process which would still be cheaper than having to go to court.
Mr Mjenxane added that if one party was dissatisfied with the arbitration process they could still go to court for a review.
Ms T Mbabama (DA) asked in whose interest it would be to extend the time for arbitration.
The Chairperson said the issue about timeframe was for mediation in trying to resolve a matter between the occupier and the land owner.
Mr Filtane said he was still unsatisfied with the explanation around the inclusion of ‘attempted’ especially in view of section 21 of the principal Act. He proposed that the clause 5 (e) would be better if it read ‘where mediation had failed’.
Ms Lufundo said section 10 which was being amended dealt with an order of eviction, and as it stood had been from (1) (a)- (d) which were all the conditions that a court could consider before an eviction. Paragraph (e) was an addition to section 10 of the principal Act. Therefore before an order for eviction could be granted, paragraph (e) also had to have been considered amongst the listed conditions in section 10. Paragraph (e) had not been drafted to deal with the processes in sections 21& 22 but was rather a condition.
Mr Filtane said the impression is that the Committee is not making the legislation but rather DRDLR is as in every suggestion the Committee made there was an explanation accompanied by unwillingness from DRDLR to draft the amendment the way the Committee wanted. He said the meeting could proceed based on the previous weeks understanding that the amendment was an interim measure.
The Chairperson said it was incorrect for Mr Filtane to say DRDLR was forcing the Committee to process the amendment its way as the legal advisors came from Parliament, the office of the chief state law advisor and one legal advisor from the DRDLR. Their role there was to advise but they were not the ones drafting the legislation.
Mr Mnguni said he was not completely in disagreement with Mr Filtane nor was he cornering the legal advisors but emphasised that they had to capture how the Committee wanted the amendment to be drafted. He proposed the meeting proceed with the legal advisors mindful of the frustration expressed by members of the Committee.
The Chairperson said after each clause the Committee would discuss before legal advisors were called upon to advice. Therefore the lawmaking still belonged to the Committee and if particular members were unhappy with a particular clause they simply had to indicated that and nothing else.
Mr Walters said he was concerned that the legal advisors had become the victims of the Committee’s frustrations and the Committee had to be confident in its ability to make law as advice remained that and could be used or rejected. He was in support of the Chairperson and emphasised that she protect the advisors.
The Chairperson reiterated that she still awaited the Committee’s decision on the clause.
Mr Nchabeleng said he disagreed with the sentiment of removing the term ‘attempt’ as an individual could reject mediation but there had to be proof that mediation had been attempted but had failed so that arbitration could be justifiable and the clause made a lot of sense for him.
Mr Filtane said he accepted the rationale given by the legal advisors.
The clause was agreed upon.
Mr Nchabeleng read out the clause.
Mr Filtane said he was satisfied with the clause.
Ms Magadla sought clarity as to what would happen if an occupier indeed had occupied land before 4 February 1997.
Adv. Ramasala replied that section 10 in the principal Act dealt with persons who had been occupiers before 4 February 1997 so that section 11 which was also being amended dealt with persons who had occupied land after 4 February 1997.
The Committee agreed to amend section 11 as drafted.
Mr Mnguni read out the clause.
Mr Filtane said he wanted clarity of what ‘reasonable’ meant in the context of that proposed amendment.
Mr Walters said ‘reasonable’ was a broad and general term but in that context could mean the eviction would be consistent with evection practises and had been humane.
Mr Mjenxane replied that ‘reasonable’ was an objective standard in law used throughout court process whereas in that amendment it would be the court that had to determine what reasonable weather was, when an eviction could be carried out.
Mr Filtane said he was satisfied.
The Committee agreed on amendment of section 12 of Act 62 of 1997.
Insertion of Chapter IVA in Act 62 of 1997
Composition of the Board
Mr Filtane read through the amendment.
Mr Walters asked whether the size of the board would be determined through regulations or otherwise; in terms of subsections (4) (a) & (b) and subsections (6) & (7) he felt that subsection (4) (a) had to be worked into subclause (6) as an additional requirement as the Minister was appointing a nomination Committee.
Mr Filtane said subclause 15B (4) (b) felt like a direct assault on women’s integrity. Especially if the prescription was that because they were women, they had to make up 50% of the board members of the Land Rights Management Board (LRMB). There had to be other criteria apart from gender.
The Chairperson said subclause 15B(3) had addressed Mr Filtane’s concerns already.
Ms Mbabama replied that the insertion of Chapter IVA in Act 62 of 1997 was in order considering the history of women in SA’s recent past.
Ms Magadla said that as women they were in Parliament on the basis of merit and agreed that the insertion was proper as well.
Mr Nchabeleng also supported the drafting of the amendment as had been read.
Mr Filtane said part of his opposition was that 60% of the population of SA was the youth; he therefore wondered how the youth would be catered for in the establishment of the LRMB. He had no issues with gender balance but the youth had to be catered for as well. He proposed that another subclause referring to a percentage of the youth which would be accommodated in the establishment of the LRMB be added.
The Chairperson said subclause 15B(4) (a) covered the youth as affected interests but not all designations would be specified, such as people with disabilities as well.
Mr Walters said the intention of the board could not be forgotten as it was to be established so that it could add value to the legislation. He reiterated his proposal that in subclause (7):’...ensure that the Committee is broadly representative of the various racial groups, “communities, interests affected” and geographic areas of the Republic and that both males and females are represented’.
Mr Skwatsha said he had no issue with what Mr Walters had raised but his sense regarding subclause (4) (b) had been that Mr Filtane was advocating for more women in the board. His reading of the subclause was that it allowed even a 100% female board as the minimum limit was that no less that 50% of the LRMB members could be women.
Adv. Ramasala said the way the amendment Bill had been written is that the number of board members would be determined by the Minister of DRDLR.
Ms Lufundo said it would sound redundant to add Mr Walters’ proposal to subclause 7 as the way it had been drafted captured what he had proposed.
Mr Skwatsha asked whether saying the ‘board had to have the necessary expertise that had the best interests of the communities at heart’; would that not be capturing the spirit of Mr Walters’ concern?
Mr Walters said for him ‘representative’ as captured in subclause 7 spoke to the interests of the community and he agreed with the wording as he had proposed, though it could be tweaked but had to be consistent. He added he would be satisfied if ‘reasonable’ would be inserted in clause 15B (1) to read: such reasonable number of members determined and appointed by the Minister.
The Chairperson asked if the Committee agreed with the insertion of ‘reasonable’ in 15B (1) as proposed.
Mr Nchabeleng did not agree with Mr Walter’s as it had already been captured that the Minister would decide on how many members the LRMB would have.
Mr Walters said including ‘reasonable had no reference to the current Minister. It is for future reference and is a qualification that whoever the incumbent is, they would have to apply their mind in appointing board members. The term also changed nothing in terms of the principle and intention of the subclause.
Mr Mnguni said that the state could be abused at all levels ‘reasonable’ therefore could be protective and therefore he saw no problem with adding that term in subclause (1).
Adv. Ramasala said the determination of members of the LRMB would be determined by the Minister using a particular policy which would still be determined itself; moreover if the Committee was unhappy with the drafting the Committee could determine the number of members it felt would be reasonable for the LRMB. The insertion of the term ‘reasonable’ would introduce uncertainty.
Ms Lufundo said the Committee was not dealing with establishment of a board for the first time in a Bill and in most legislation the number of aboard was set-out in the legislation as proposed by the legislature. The Committee could certainly set a number for the Minister not to exceed in appointing the LRMB.
Mr Filtane proposed that the LRMB could have no less than seven members; but no more than 11 board members. That board would have to be as widely representative of the interests that the amendment Bill was trying to address.
Mr Walters said he felt 7-11 board members could be quite small but no more than 24 board members sounded about correct to him.
Mr Nchabeleng proposed that the Committee could park that discussion on the size and have the staff assist by checking the composition of other boards in the entities of other departments and then return to the matter.
Mr Mnguni said from where he sat the Committee had seen abuse of power and the SA Constitution provided for checks and balances. Therefore the reasonability which had been alluded to by Mr Walters though it could be challenged, was not ill-conceived. The only board of directors at DRDLR was appointed by the Ingonyama Trust Board (ITB), whereas in all other departments and entities such boards had been appointed via a parliamentary process. The Committee perhaps could apply its mind to that issue as well, though he supported Mr Nchabeleng’s proposal that the issue stand over to the following meeting.
The Chairperson outlined the proposals made by members especially that the issue of the size and composition of the board stand over.
Mr Filtane said the proposal by Mr Mnguni was prudent provided the support staff would be requested to look at: what numbers were normally used in similar boards. He agreed that the matter stand over.
Ms Nxasana said that in the Land Tenure Security Policy, the DRDLR working group on the LRMB had been cognisant about the alignment of the institutions that were being established. Amongst those had been the Land Management Commission that had been proposed by the regulation of Agricultural Land Holdings Bill and the policy on the Communal Land Tenure spoke to Land Boards. There had been concerns about the multiplicity of the institutions that were to be established which would not be talking to each other. Amongst the considerations was that one of the key functions of the LRMB would be to set-up the LRM Committees which would be local Committees dealing with dispute resolution. From the work stream it had emerged that because of the cost implication of boards the committees would have to be set-up incrementally.
Ms Nxasana’s proposal was that in addition to parking the matter it could also be considered as to what the relationships would be amongst already existing institutions with the establishment of the LRMB.
Functions of the Board
Ms Mbabama read through section 15C.
Mr Madela said he wanted clarity in terms of subclause 15C (1) (h).
Mr Filtane was concerned about subclause (3) that functions of the LRM Committees could be extended if the LRMB had powers to delegate functions.
Mr Nchabeleng replied that the LRM Committees would not be working in isolation from DRDLR as they would be assisting the Department in dispute resolution.
Ms Mbabama said boards normally looked after the strategic duties of an entity so that its subcommittees looked after operational matters. Therefore she saw no problem in delegated functions. The LRM Committees would exist across SA.
The Chairperson asked whether the Committee agreed on the functions of the board.
Mr Madella said he agreed with the functions of the board as was outlined but proposed that arbitration be inserted in subclause 15C (1) (h).
Adv. Ramasala replied that arbitration appeared in subclause 15C (1) (d).
The Chairperson said the paragraphs did not speak to the same thing.
Ms Nxasana said of primacy for consideration was those functions the LRMB could not delegate which were to advise the Minister, guide the LRM Committees and to create mechanisms such as the Land Rights Management Facility. Paragraph (h) spoke to the LRMB saying it would not to undertake an intervention without prior research which was an operational matter. The means test therefore was the how the mediation or legal assistance could be funded.
The Chairperson said the Committee only needed the matter of paragraph (h) to be addressed and nothing else.
Adv. Ramasala said the emphasis at paragraph (h) had been on legal assistance and mediation could also be deleted.
Mr Madella said he had no issue with the deletion as mediation could not be provided without arbitration as that would be inconsistent.
Mr Filtane said that one of the functions of the LRM Committees is to deal with dispute resolution; if for example a farmer wanted to evict an occupier for his farming activities, the LRM Committee would have to get involved in that matter. The matter could be referred to the LRMB after that process of mediation could be followed where the final step would be the court process. How could the Committee shorten the process using the amendment as it was known that boards usually sat once a term?
The Chairperson said that was an operational matter affecting the LRM Committees but she preferred the Committee deal with the LRMB.
Mr Filtane accepted the Chairperson’s ruling but pleaded that the Committee and the support staff apply their mind to that matter so that when the Committee arrived upon it, there could be better discussions.
The Committee agreed on functions of the board.
Remuneration of members of the Board
Ms C Matsimbi (ANC) read through section 15D.
Mr Filtane asked whether provision 15D (1) (a) had to be looked at from an individual perspective or the function of a board collectively. His concern was board members could end up with different remuneration packages.
Mr Madella said that in relation to all boards, the only deviation in remuneration normally involved the chairman and his/her deputy. The amendment already had indicated what the responsibilities of the chairman and the deputy would be. Additionally, National Treasury (NT) determined the remuneration of the chairman.
Mr Nchabeleng said there would be full time and part-time directors and therefore their remuneration would not be the same.
Mr Filtane said subclause 15D (2) (c) still made him uneasy as that left space for potential discriminatory decisions by the Minister.
The Chairperson said that paragraph (2) (c) probably spoke to special meetings which the LRMB would have to call apart from their mandatory quarterly meetings which they would have to be remunerated for. Moreover subcommittees of the board could also be established to deal with a particular issue and paragraph (2) (c) could be talking to those as well.
Adv. Ramasala said the Chairperson had covered the point well.
Ms Mbabama asked whether the Committee would have mitigated the risk of a corrupt person(s) in having paragraph (2) (c). Who would determine the appropriateness of circumstances?
Mr Nchabeleng said people were inherently good until something happened and from his perspectives the different responsibilities of the Ministers of DRDLR and that of Finance could only complement each other and not work in conflict with one another. There were policies, regulations and legislation in place which called for appointment of persons and how they would carry out their mandate.
The Chairperson said though Ms Mbabama’s concern had to be addressed her plea was for the Committee to focus on the amendment as wherever money was mentioned in a piece of legislation the Minister of Finance always had to be consulted.
The Committee agreed on clause 15D.
Disqualification from membership
Ms Magadla read through clause 15E.
Mr Filtane had issue with subclause 15E (c) in that an individual could have the right of permanent residence in the Republic without having received a certificate yet. He asked if the drafting of the paragraph could not say rather: had not been granted permanent residence, instead?
The Chairperson asked whether Mr Filtane was suggesting that an unnaturalised South African could be nominated into the LRMB.
Mr Nchabeleng enumerated a few former Members of Parliament (MPs) who had been naturalised South Africans. He was satisfied with how 15E had been drafted.
The Committee agreed to clause 15E.
Vacation and removal from office
Mr Madella read clause 15F with the Committee.
Mr Filtane asked if it would not be prudent to prescribe a reasonable period within which the Minister had to comply with subclause 15F (2) (a).
Mr Madella noted the omission of incapacity in paragraph 15F (3) (b) as that was also a ground to remove a member of the board.
The Chairperson asked whether Mr Madella was asking whether incapacitated persons would simply be removed without an investigation as it had been omitted in paragraph (3) (b).
Ms Nxasana said for consistency what the Committee had raised could be added in paragraph (3) (b).
Adv. Ramasala said the drafters had taken it for granted that incapacity would be obvious as there would be a certificate of proof of incapacity and would require no investigation.
Mr Madalla asked who would determine capacity and incapacity of a board member.
Mr Mjenxane noted that if the Committee read the amendment, subclause (3) (a) empowered the Minister subject to the provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) (PAJA). The decision by the Minister would therefore not be arbitrary but would have been informed by an inquiry into the capacity of a board member. Paragraphs (c ) and (d) set out further conditions per category as to why the Minister could remove a member of the LRMB.
Mr Nchabeleng said incapacity did not only refer to mental illness it could refer to laziness or being ill-equipped to perform certain functions.
Mr Madella said he was concerned with the inconsistency in that if PAJA applied to all three categories in paragraph (a) but did not apply in paragraphs (b) and (c) he found that problematic. He maintained his proposal that incapacity be included in paragraph (b).
Adv. Ramasala said the alternative would be in paragraph (b) the Committee could remove ‘on the grounds of incompetence and misconduct’ so that investigation would apply to all three categories as outlined in paragraph (a).
Ms Lufundo wanted to clarify the objective behind distinguishing between the three categories. Decisions on misconduct and incompetence had to be based on findings from investigation as outlined in paragraph (b) but on incapacity there would be no need for that though they had been captured in paragraph (a) together. She further added that the definition of incapacity had referred to mental or physical inability to perform a function. Incapacity would therefore be certified by a court.
Mr Madella said he would agree with the deletion proposed by Adv. Ramasala, but disagreed with the definition of incapacity since it was not as straightforward as Ms Lufundo had outlined and his personal and trade union experiences had taught him otherwise.
Ms Mbabama said though she disagreed with the definition of incapacity and the explanation therefore, it could be further investigated and elaborated.
Ms Magadla did not agree with the deletion as proposed by Adv. Ramasala if it referred to deletion of the entire paragraph (b) of subclause 15F (3). She did however; support Mr Madella’s view.
The Chairperson reiterated that the question was whether the Committee agreed the matter of incapacity be checked for elaboration if it was to be included at paragraph (3) (b).
The Committee agreed.
Support to and reports by the Board
Mr Nchabeleng read out clause 15G.
Mr Filtane noted a grammatical amendment in subclause 15G (2).
Ms Lufundo said indeed the grammatical change would make ease of reading and agreed with it.
The Committee agreed.
Mr Filtane asked what the consequences of an individual failing to vacate office were, in terms of the provisions of clause 15F.
Adv. Ramasala said practically there could be no provision in the amendment for that. As part of normal operations, a membership which had been terminated and the individual still came to a meeting could be simply asked to leave. Additionally, the individual could be assisted to vacate if there was resistance.
The Chairperson said that matter could not be contained in the amendment.
Land Rights Management Committees
Mr Mnguni read through clause 15H.
Mr Filtane wanted clarity on whether the LRMB was the only body that could assign functions to the LRM Committees and not the Minister.
Mr Madella referred to subclause 15H (1) (a) which spoke to recommendations from the LRMB in the establishment of LRM Committees.
Ms Nxasana said the LRMB had an oversight over LRM Committees but the decision whether it would be a local or district LRM Committee would have to be determined by several factors. For example, if one had been in De Doorns where there had been an intensity of evictions, one could say the LRMB could establish a De Doorns LRM Committee because of matters there. The actual establishment of who, where and how LRM Committees would operate would be confirmed per herself by the Minister because of the resource implications.
Mr Filtane said if ‘areas’ as used in paragraph 15H (1)(a) referred to geographical location he accepted Ms Nxasana’s rationale but if ‘areas’ related to duties and functions it would sound like a duplication of function between the Minister and the Board and potential conflicts between the authorities. He proposed that DRDLR formulate how it wanted the Committee to make sense of paragraph 15H (1) (a) or who had the authority to tell the LRM Committees what to do and when to do it.
Adv. Ramasala said the Minister made the decisions on recommendations from the LRMB on the LRM Committee. Subclause 15H (3) were the functions of the LRM Committees as stated in the law; therefore, it was not for the Minister to say where the LRM Committees could go and where they could not go. The areas of cooperation would be determined by the Minister on the recommendation of the LRMB.
Mr Mnguni said that the LRM Committees would have needed to be standardised as well in terms of size and structure so that they would not be haphazard bodies but if that could be accommodated in the regulations he would be satisfied.
Ms Mbabama wanted clarity on subclause 15H (2) (b) as it referred to the DG but the Minister was also appointing.
Ms Nxasana said the understanding had been that the Minister would always act on recommendations and those would have to be made through DRDLR structures thus the DG.
The Committee agreed to the insertions of clause 15.
Mr Filtane read through section 9 of the amendment bill. He asked which other alternative the DG would be empowered to take as section 21 was being amended with the insertion of subclause (3A) which had the term ‘may’ within it.
Mr Mnguni asked how disputes would get to the DGs office when the LRMB is established.
Ms Nxasana said that according to section 21 (1) of the principal Act, a party may request the Director-General to appoint one or more persons with expertise in dispute resolution- which had been the point she had made earlier that mediation was not compulsory. The process of referral would be always someone going to DRDLR because they were being evicted or they had been referred by a Non-Governmental Organisation (NGO) or DRDLR became aware about it through print media. The only thing that the amendment did was to replace the LRM facility with LRM Committees and the LRMB. The ‘may’ was retained in that manner.
Adv. Ramasala said the DG could initiate a process of resolution in terms of section 21 as the DG. Alternatively, the DG could refer the dispute to the LRMB.
As section 21 (1) prescribed a party could approach the DG directly with a dispute.
Mr Filtane asked whether the DGs decision to either initiate dispute resolution or to refer a dispute to the LRMB was at his discretion or had that been legislated somewhere.
Ms Nxasana said she thought the DG would be persuaded by how the matter landed at his office door. There was section 9 (2) (d) in the principal Act which spoke to the limitation on evictions.
Mr Mnguni said that the issue also could be bettered in regulations and he was moving to adopt that amendment of section 21.
The Committee agreed on the amendment.
Ms Mbabama read through the amendment of section 28.
The Committee agreed to the amendment.
Ms Matsimbi read the section.
The Committee agreed on the short title.
The Chairperson said the legal team would make a list and bring the B version of the Bill to the following meeting.
Consideration of outstanding Committee minutes
The Committee considered and adopted its minutes of the 22 February 2017 with technical amendments.
Mr Walters said that the Committee had resolved that the list of stakeholders that had been invited to make submissions on the amendments to the Extension of Security of Tenure Amendment Bill would be provided to the Committee. Though he appreciated the information already provided but it only referred to some stakeholders that had made written and oral submissions. If there was any further information on how the call for submissions had been made, he would appreciate that.
Ms Phumla Nyamza, Committee secretary said that advertisements had been made in three national newspapers and there had also been calls for submissions made through radio stations rather than invites to individuals.
Ms Magadla requested that the South African Local Government Association (SALGA) could be also included in the list of stakeholders that had appeared before the Committee.
The meeting was adjourned.
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