The Committee met to continue deliberations on the Extension of Security of Tenure Amendment Bill (the Bill). Both the Minister and his Deputy were present. Members firstly adopted the minutes of the last meeting of 1 March, since their discussions today were based on matters arising out of those minutes. Members had asked the Committee Section and legal advisers to research how other advisory boards were set up, to give context to the further consideration to the clauses in the Bill that dealt with the new Land Rights Management Board (LRMB). The Committee's Content Advisor set out details of advisory boards in the agriculture, environmental and immigration sectors, pointing out their common feature of appointment by the Minister, sometimes after the Minister had called for nomination. Numbers varied between eight and 15 members, and all said that the members could be reappointed for a second term, but not a third. A common feature was the requirement that the members be experts in their field. The legal advisers had noted something of an anomaly in the present wording for the new section 15, which set up the LRMB because of the reference to monitoring and evaluating and providing legal assistance. The legal advisers noted that boards for entities that were independent in nature, such as the SABC, could have a scope beyond one portfolio. However, advisory boards would usually assist a minister in the implementation of policy that the Minister created for his own field, and it would seem only fair that the Minister should be able to select those who could give him the best advice in that field. Many statutory councils in the health sector accounted to the Minister of Health as they assisted on health policy, and the same would apply to this body. They also pointed out that the body would be located within the Department of Rural Development and Land Reform, and would be funded from the Department's existing budget.
Members discussed whether boards had de facto executive functions. The Public Protector had raised concerns about possible duplication of functions with the Director General. The Parliamentary legal advisers believed that the work would remain advisory. They stressed that the functions and number of meetings were important considerations. Some functions that would offer occupiers relief may not be purely advisory. It was stressed that institutions would also be needed to support the work of the LRMB, and LRMB would only oversee the establishment of the Land Rights Management Committees, located at district and local level, who would be the structures to note and report evictions and feed information back to a central database. It was suggested that perhaps the inclusion of the word “facilitate” at the new section 15C(1)(c) would clarify. It had been recognised that DRDLR could not do this work itself. The point was made that many boards did have de facto operational functions but the actual function, not the description, was the important point. It was suggested that the Department must draw a job description for its officials, the LRM Committees, and the board, to determine which functions would be delegated to the LRM Committees.
Legal advisers said that they had already had some discussions and thought that the possibly problematic functions were those set out in paragraphs (d), (g) and (h) of the new section 15C(1), and suggested that if the word “assist” was added this might clarify the position. The LRMB could never fund legal assistance but must advise the Minister itself, and (h) could be redrafted to illustrate the limits. Members suggested that it would be useful for all the legal advisers to be given some more time to exchange ideas and revert with more drafting options. Members also suggested the possibility of having a leading phrase emphasising the advisory nature of the work.
The Minister stressed that the questions might be answered by considering what the LRMB was intended to achieve; namely to achieve change. The LRMB would work closely with committees, and he was hoping that mayors, whatever their political affiliations, would champion the change. It was suggested then that some of the wording, in paragraphs (i) and (j) might be better moved to the sections dealing with the committees.
Members discussed the terms of office. They agreed, after discussion, that this should be set out in the new legislation, and that, given the requirement for 50'/50 gender representation, and the need to keep the LRMB to an efficient budget whilst not skimping on skills, as well as allowing for the possibility of provincial representation, between seven and thirteen members would be appropriate. The new section 15B(2) said that the term would be determined by the Minister, but Members thought that this must also be included in the legislation, and that four years would be ideal.
It was agreed that a new A-list would be presented to the Committee with all amendments at the next meeting.
Chairperson's opening remarks and administrative issues
The Chairperson acknowledged the presence of Minister Gugile Nkwinti and Deputy Minister Mcebisi Skwatsha at the meeting..
The Chairperson noted that when the Committee was dealing with consideration of the Extension of Security of Tenure (ESTA) Bill in the previous week, questions had been asked about the boards in entities, and the legal advisers and support staff were requested to benchmark boards in other entities and to explain which were appointed by the Minister and which by Parliament. They had also been asked to look into the size of the boards, whether the size was included in the legislation, and what the term 'incapacity' meant.
Since that was a matter arising out of the minutes of the previous meeting, she asked that Members firstly consider:
Minutes of 1 March 2017,
Members agreed to the adoption of the minutes, with some technical amendments.
Composition of boards in entities: matter arising out of consideration of Bill
Dr Tshililo Manenzhe, Committee Content Advisor, said the research had shown that there were four boards in this sector that were similar to the Land Rights Management Board (LRMB) now included in the ESTA Bill. He explained their composition and details as follows:
- The Plant Breeders Advisory Committee (PBAC) was set by the plant breeder’s advice group. The PBAC had to have eight members who were experts in their field. The PBAC operated for three years. Members of that PBAC could be reappointed for another three years but not a third term
- The National Environmental Advisory Board (NEAB) was established in terms of the National Environmental Management Act (NEMA). The Act prescribed 12 members but no more than 15 members, representing stakeholders. The representatives serving on the board must have had experience and have the skills necessary to enable that forum to function. They served a two-year term with an option to reappoint board members for another two years. They could not be re-appointed for a third term
- The Immigration Advisory Board (IAB) was established by the Immigration Act, 2002. All the advisory boards were appointed by the relevant Minister and in some cases; there were nomination Committees that recommended names to a Minister. It was specifically prescribed in the Act that individual representatives from specific departments had to be nominated. The Minister of Home affairs then had a choice of adding about four/five individuals to the IAB, who would have specific expertise, to advise the Minister. Additionally, the Director-General of Department of Home Affairs was part of the IAB. Dr Manenzhe noted, by comparison, that the ESTA Bill said that the LRMB had to advise both the Minister and the Director General (DG), though the DG was a technocrat.
- The Advisory Board on Social Development (ABSD) was established in terms of the Social Development Act. It prescribed that it must comprise at least nine, but no more than ten members. They were appointed by the Minister and had a three-year term.
Dr Manenzhe noted that while the researchers had been probing whether the LRMB was advisory in nature, some discussion was help on whether there was some overlap between executive and non-executive functions. For example, the LRMB would be monitoring and evaluating and providing legal assistance. The Committee would need to consider whether this made it advisory in nature or took it into a different function.
Advocate Sello Ramasala, Legislative Specialist, Department of Rural Development and Land Reform, referred to the appointment process. There was a difference – largely reflected in the appointment process – between advisory boards/councils and boards for entities that were independent in nature and had a scope beyond a particular portfolio. An example of the latter would be the South African Broadcasting Corporation (SABC) board.
The Minister determined and executed policy, so advisory boards were boards that assisted the Minister in implementation of policy. For this reason, it would only be fair that the Minister must know what people would be assisting him in giving of advice on the implementation of policy. A lot of statutory councils which dealt with professional issues, such as the Health Professionals Council and the SA Pharmacy Council accounted to the Minister of Health, as they assisted him/her with health policy matters. The same would apply to boards or councils set up to advise the Minister on rural development and land reform.
Ms Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Advisor, agreed that the thinking had been that the LRMB would be an advisory body, which would be located within DRDLR. It would not be separately funded but would be funded from the DRDLR budget.
Dr Manenzhe said there was agreement that the LRMB would be advisory, because listed functions were set out in the new section 15. However, the question was whether it would remain advisory whilst actually carrying out those functions?
The Chairperson said the Committee needed clarity. The Public Protector (PP) had raised an issue of duplication of functions between the LRMB and people appointed to perform similar functions within DRDLR.
Mr Nathi Mjenxane, Legal Advisor, Parliament, said the nature of the LRMB would be to advise the Minister and the DG on matters related to ESTA. The accountability to Parliament, for oversight purposes, would remain with the Minister. The DG, as head of administration, would also be advised by the LRMB on issues arising from ESTA. The listed functions at the new section 15C(1) were those that LRMB would be invited to provide advice on, were limited to the ESTA space, and therefore he was satisfied that the work would remain advisory and that there would be no over-reach by the LRMB.
The Chairperson reiterated that the duplication alluded to related to functions of the Department of Rural Development and Land Reform (DRDLR), and not the Committee.
Mr M Filtane (UDM) said the LRMB had to be functional, and not sit only once a term. The point raised by the PP had been validated in that the LRMB would be busy virtually all the time. He suggested that perhaps this was a point to be taken into consideration by the Committee.
Mr M Walters (DA) agreed, suggesting that possibly the word ‘advise’ had to be added at the new section 15C, or throughout the subclauses, to indicate the LRMB core function and to deal with the possible duplication that had been identified by the PP.
Mr P Mnguni (ANC) said the tricky part was that there were functions that were not advisory but desirable from occupiers’ point of view, as they would offer them relief. He posed the question whether providing legal advice was an “advisory” function and asked how LRMB might better serve its purpose as a constitutional entity if, as the PP had said, it could have some duplication. He proposed that the Committee accept the wording of the present draft for the new section15C and said that the Committee could always amend the ESTA in future.
Ms Vuyiswa Nxasana, Acting Deputy Director-General: Land Tenure and Administration, DRDLR, said the establishment of the LRMB had been done in recognition of the the need to build institutions to support the work, as designed in the land tenure security policy, in commercial farming areas. A body was needed to advise the Minister and the DG on land tenure security. The only oversight that the LRMB would do would be the establishment of the Land Rights Management Committees (LRM Committees). LRM Committees would be located at district and local level.
In relation to the wording around the database, she suggested that the formulation at the new section15C (1)(c) could start with ‘facilitate‘. She said the database had been included amongst the functions of the LRMB because the DRDLR had been struggling for several years with a credible eviction monitoring system. The LRM Committees, being at the local and district level, would how be the structures tasked with noting and reporting an eviction. When they did intervene, the information collected would be fed into a central database overseen by the LRMB. The LMRB could even bring in additional resources or research, but certainly would not be doing the work of the Department. It had been recognised that DRDLR could not do this work itself.
Mr Walters asked whether the LRMB was advisory. He said that if not, then the LRMB could be compared with other boards who had de facto executive functions.
Ms T Mbabama (DA) said most boards were normally strategic, although, because of their powers to delegate, also had de facto operational functions. She was not so much concerned with the wording as with the separation of functions between the DRDLR and the LRM Committees. If the possible duplication was not clarified now, that would create confusion going forward. She suggested that the DRDLR would have to do an exercise to outline the job profiles of DRDLR officials.
Mr Mnguni insisted that the three legal advisers present, from different institutions, should consider the separation of those functions. At Committee level there would be a compromise between Members and he did not want the Committee at that stage to have to re-evaluate its position. LRMB would be a milestone, being the first of its kind in the rural development land tenure security portfolio.
He proposed that the legal advisers meet on their own to consider the functions of the LRMB separately from those of DRDLR, and then return to the Committee with their views and suggestions.
Mr Filtane said the new subsection (3) had implied that the assigned LRMB functions could be done by the LRM Committees. He wondered then why those functions were not simply assigned to the LRM Committees if the, LRMB could delegate them anyway?
Mr Walters said that if there was still uncertainty as to whether the LRMB would be an advisory or an executive body then the question arose as to which functions would be delegated to the LRM Committees, and to whom would those Committees report? He supported the proposal by Mr Mnguni to get legal clarity of what the LRMB would be and how the delegations of functions would work.
Adv Ramasala said the legal advisers already had a preliminary view on the wording in the new section15C, that some of the functions as outlined gave the impression of being executive or operational in nature. That had not been the intention; it was supposed to be only advisory. The functions as set out in paragraphs (d), (g) and (h) of the new (C) were the functions that created uncertainty. Those set out in paragraphs (a), (b), (e) and (f) clearly related to advisory work. The legal advisers had though that if the word “assist” was added to the wording of subclauses (d), (g) and (h) this might clarify it. Although the functions belonged to DRDLR the LRMB was still needed to facilitate that work on the ground.
Mr Mnguni asked whether paragraph 15C(h) in the ESTA was envisaged to be advisory.
Adv Ramasala said although he had just said that the LRMB would ‘assist' in formulating, it could never fund legal assistance. Its function was to advise the Minister. The reference to funding capacity would have to be removed and paragraph (h) would need to be redrafted to clearly show the LRMB's function and limits.
Mr Mnguni reiterated his earlier point that the legal advisers should be given time to discuss the matter further amongst themselves and come back to the Committee with some drafting options for the new 15C.
Mr A Madella (ANC) supported Mr Mnguni’s proposal. He added that because the term ‘assist’ also implied operations, perhaps 'oversee' might be a better option.
Mr Gugile Nkwinti, Minister of Rural Development and Land Reform, agreed that the LRMB was supposed to be an advisory board, and the discussion had reminded him of an earlier deadlock when this was discussed at the DRDLR. There, it was asked what was envisaged as coming out of the establishment of the Board, and what it must achieve. Adv Ramasala and Ms Lufundo had correctly stated the intentions. The DRDLR intended to achieve change through the LRMB. The LRMB would be working closely with LRM Committees at local municipal level. He said he would be meeting with all mayors of local municipalities and wanted to appoint them as political champions of LRM Committees, irrespective of political affiliation. That strategy would speak directly to subclauses 15C (i)& (j). He was proposing that what was set out there should be re-located to LRM Committees instead of the LRMB. The Committee’s discussion had been quite helpful.
Responding to the Minister, Mr Walters said that there possibly had to be a leading term, stated right at the outset of the new section15C, that the LRMB would be advisory in nature.
The Chairperson said as had been agreed the legal advisers would have to return to the Committee with a redrafted A-list containing the amendments from the Committee.
Mr Walters asked if the Committee had agreed on the term of office for the LRMB and re-appointments.
The Chairperson said it had been a new point in the ESTA which the Committee had not focused on previously. The Committee would have to consider the matter.
Mr Mjenxane said that procedurally, if there were to be new amendments coming from the Committee, they would need to be added to the current proposals. The advisers must implement that, and so a new A-list would have to be presented at the next meeting.
The Chairperson said the Committee had not decided on the number of board members for the LRMB.
Mr Madella proposed a minimum of seven and a maximum of nine board members.
Mr Walters said he would be satisfied with a consideration of the functions of the LRMB and geographic representation, therefore his proposal would be 15 members including the Chairman and the Deputy Chairman.
Ms Magadla supported the proposal of Mr Madella. Since the LRMB would be a new body it made more sense for the Minister to consider increasing the number of members after the first term expired.
Mr Mnguni said the Committee had to be cautious about representation. This was not just geographic spread as there would have to be consideration of gender and disability. His understanding was that there had never been consideration of provincial representatives as the LRMB would not be a representative body by function, but had a defined scope. He asked the Committee to consider that 'geographical representation' could be construed as taking people from all nine provinces, but might result in only choosing those from urban centres. If there were to be rural / urban farm representation, then the number of seven suggested by Mr Madella would not cover all the provinces. He noted that Dr Manenzhe ’alluded to a maximum of nine members, and he would be happy with that. He added that the LRMB would be directly funded by DRDLR, so that increasing the size of the board would hit DRDLR's budget allocation hard. Having a minimum number would ensure that the board was representative and would not drop to one person in the future.
Mr Mbabama said the Committee had to ensure that the number of board members would be guided by the new section15C (2), as it was set out in the “Proposed B-Bill working document”.
The Chairperson requested the Committee to agree on a number.
Mr Filtane recommended provincial representation, and he pointed out that because there was a requirement of 50/50 gender representation, nine to eleven would be ideal.
Mr Walters agreed that the LRMB should not be too big. Dr Manenzhe had clearly indicated two issues; the team of people must work, and there had to be stakeholder participation. A minimum of seven and maximum of 13 could work.
Mr Mnguni said since the minimum number was not in contention, he would be happy to go with the maximum of 13; the final maximum appointed would depend on the resources.
Other Committee Members agreed.
The Chairperson asked for input from the DRDLR on the proposed term of office for board members of the LRMB, which was not stated in the Bill.
Ms Nxasana said the proposed term had been between three to five years to allow the LRMB to gel and to allow it to get a grip on its functions.
Ms Lufundo read the new section15B (2), which noted that the determination of the term would be made by the Minister.
Mr K Robertson (DA) asked what the general practice was around board terms, and what model they followed in that determination.
Mr Filtane proposed four years. National elections would be held in 2019. The new Minister would, after that date, then have at least a year or two to familiarise themselves with the work of the LRMB and determine whether to re-appoint the same board or appoint new members.
Mr Madella asked what proposals the Minister and Department had for timeframes for the new section15D.
Mr Mnguni said the term of office should not be determined from the person of the Minister. He thought four years seemed fair; the LRMB would be made up of experts. He thought that the term of office had to be specified in the legislation.
Ms Magadla supported that proposal.
The Committee agreed on stating a four-year term of office for the LRMB.
The Chairperson said all issues outstanding had been addressed. The Committee would not proceed to go through the proposed amendments now, but would wait for the new A-list at the next meeting. The Committee Report would also be dealt with at that meeting.
The meeting was adjourned.
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