Extension of Security of Tenure Amendment Bill [B24-2015]: Adoption, in presence of Deputy Minister

Meeting report

Adoption of minutes of 8 March 2017

The Committee adopted the minutes of 8 March 2017, with technical amendments.

Mr J Mnguni (ANC) proposed that “matters arising” be discussed when the Committee considered its draft report on the Extension of Security of Tenure Amendment Bill (ESTA) and the A list and B versions. Members agreed.

Extension of Security of Tenure Amendment Bill [B24-2015] B version: Further deliberations
The Chairperson, in response to a query from Mr M Filtane (UDM), noted that the Committee would need to deliberate on the meaning of “incapacity” in the Bill, since there had been no consensus reached between the Committee and the legal advisors.

Adv Sello Ramasala, Legislative Specialist, Department of Rural Development and Land Reform, noted that the legal advisors, after discussion, said that as the legal advisors they had discussed and decided to delete part of the proposed revised section 15F(3)(b) including “on the grounds of misconduct or incompetence”, from the Bill.

The Chairperson read paragraph 15F(3)(a) reiterating that the question had been why ‘incapacity’ had not been included at 15F(3)(b).

Adv Ramasala replied that rather than including ‘incapacity’ at 15F(3)(b) the legal advisors thought it better to delete this wording altogether, as there was already reference in 15F(3)(a). When read together, these two new subsections would made it clear that all investigations referred to in 15F(3)(b) would be undertaken in all instances as outlined in 15F(3)(a)

Adv Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Advisor, also outlined the changes in wording as they appeared in the B version of the Bill. The suggestion had been that the advisory nature of the functions of the Land Rights Management Board (LRMB) would be captured in the opening words of the new section 15C(1)(a). The new wording, which had come out of the discussions from the previous week, was that the functions of the board would be to advise the Minister and Director-General (DG) on tenure security matters.

The legal advisors had further amended paragraphs (c), (d), (f) and (g) to ensure that the LRMB was assisting, instead of performing its own functions. For example, in paragraph (c), the legal advisors had suggested that the LRMB should be specifically noted to “assist in the creation and maintenance of a database of occupiers”’.

Adv Lufundo read the amendments from the new working bill document (see attachment).

Discussion
Ms T Mbabama (DA) said she was looking for a difference between the terms “assist” and “facilitate”. The integrity of the board surely could not be reduced to “assisting”. She thought that “facilitate” also meant making sure that events were activated, through delegation or instruction.

Mr T Walters (DA) asked whether there was any reason the word “‘assist” had been used instead of the term “advise”, since the LRMB as originally conceived was advisory in nature. At paragraphs (c) and (d), he suggested that the new wording could be changed to refer to the fact that the board must “ advise on creation of a database..”… “advise on the provision for mediation….”.

Mr Walters wanted to know whether there was any reason there was no database of land rights disputes or occupiers already in existence. He suggested that the database should include a stand-alone category of ‘land rights’.

Mr A Nchabeleng (ANC) asked what the relationship would be between the LRMB and the Land Rights Management (LRM) Facility.

Ms Vuyiswa Nxasana, Deputy Director-General: Land Tenure Administration, Department of Rural Development and Land Reform (DRDLR), said the LRM Facility was a facility consisting of panels made up of lawyers and mediators, which DRDLR had been calling on to assist in resolving disputes. This Facility had been established in response to the Nkunzi court judgement, which had obligated DRDLR to provide legal mediation services to the indigent. As an independent body, the LRM facility members could be called upon by the LRMB to assist in dispute resolutions.

Mr M Filtane (UDM) was also concerned about the use of the verb “assist”. He agreed with Ms Mbabama and rather proposed the use of the term “oversee”, which he thought was a better indicator of the way in which the LRMB functions.

Mr Walters said the verb “assist” would work at paragraph (c) of the working document – in relation to the spheres of providing mediation and arbitration, similar to paragraphs (f) and (g), For paragraphs (d) and (e) he suggested the terms “oversee” or “advise”

The Chairperson asked what Mr Walters would suggest for (b), which also used the verb “assist”.

r Walters replied that he would also suggest “advise” in this paragraph also; in summary he was suggesting a reference to advise for (b) and (d), whilst (c), (f) and (g) should remain as proposed by the legal advisors.

Ms Mbabama reiterated that a board could not assist, but it could oversee and facilitate and monitor.

Mr Nchabeleng agreed that a board indeed facilitated, but maintained that there would be instances where it assisted.

Mr Mnguni pleaded with the Committee to move on. The main reason why Members were debating the issues was in order to satisfy their constituencies that the legislation was in a form that would assist occupiers in their plight regarding evictions and land disputes. At the moment, these kinds of semantics were not assisting in getting to a resolution and were effectively hindering the process.

He thought the LRMB, which would be responsible for LRM Committee’s coordination, as captured in paragraph (a) of the working document, was backed with clear policy. The new 15C(1) also clearly stated that the LRMB would be advisory in nature. All advisory bodies, at some point, executed some functions, however small these might be. He reiterated that the redrafted functions seemed adequate to him. For that reason he was proposing that the working document be accepted in its current form.

Mr Filtane pleaded with Mr Mnguni that the Committee needed to be patient when drafting legislation.

Mr Mnguni raised a point of order, saying that he was very affronted by the attack on him personally. He had simply been making the point that the Committee had been processing the legislation for a long time and it was time to move on. He pleaded with Mr Filtane to focus on the work the Committee was doing and not the personalities of the Members

The Chairperson summarised the proposals that the Committee now had to consider:
- Consideration of four terms: namely, facilitate, guide, advise and oversee
- The proposal to accept the redrafted document, as was now presented by the legal advisors.

Mr Filtane said that it was not his intention to offend anyone, but his point had been that there were suggestions before the Committee, to the effect that “assist” be replaced with “guide” or “oversee”, in paragraph 15C (1).

Mr Nathi Mjenxane, Parliamentary Legal Advisor, said that from a technical perspective, the context would be considered when interpreting the law. Insofar as administration was concerned, the Director-General (DG) would be the administrative head of everything that happened in the ESTA, including work which would be done by the LRMB. The LRMB was in place to assist in the carrying out of functions as outlined in the ESTA. That “assistance” had therefore, from a drafting perspective, been the main focus of the legal advisors. He noted, because of the concern of the Committee, that the LRMB would not be taking over powers in the DRDLR. The role of the LRMB would be firstly to advise and secondly to assist DRDLR on land tenure issues. That was the reason why the word “assist” had been used. In terms of using the term “oversee”, he firstly noted that one of the principles of legislation drafting was that wording should not be ambiguous, and there was a little difficulty thus in using the term “oversee” because in a legislative context, this word was usually used to speak to the role played by Parliament, who would oversee that the roles, powers and functions as outlined in the ESTA would be carried out. Since the board’s main role was to assist and advise it was considered that the wording that would most clearly capture this function would be “assist”.

Mr Walters said he appreciated the explanation. However, he had another query on the general wording that followed on from clause 15C(1). All the subclauses were of course to be read in the light of the introduction, whatever wording was finally used. This wording, after referring to advising the Minister and Director General, went on to say that the board would “generally…” The way that this was worded seemed to separate out the advisory parts and the general parts. He asked if it was intended that other wording should be additional to giving advice, or if it meant that the board would give advice in relation to those functions.

Mr Nchabeleng said that his understanding was that paragraph 15C (1) spoke to the main function of the LRMB, but that was also inclusive of all the following subparagraphs that followed. Read as a whole, the subparagraphs functions made sense, as the LRMB had LRM Committees that dealt with security of tenure.

Mr Mnguni said he agreed with Mr Nchabeleng’s argument in response to Mr Walters’ query. If the Committee still wanted to deliberate the matter then he proposed that the working document be put to a vote so that the process could be concluded.

Ms Mbabama said it was neither here or there whether the Committee disagreed on issues.

Adv Lufundo replied the LRMB, as captured at 15C (1) would advise the Minister and DG on security of tenure matters generally. It would then also do the functions that were outlined in the sub-paragraphs.

Adv Ramasala said the drafters had chosen the word “generally”; to be inclusive. Other possible wording might have been “in particular” or “including”.

Clause by clause deliberations

The Chairperson asked Members to read through the new draft of the Bill (B-version), clause by clause.

Mr Filtane read out the objective of the ESTA.

Adv Lufundo noted that the Committee, during the processing of the Bill, had been going through the different versions clause by clause. Amendments proposed by the Committee had led to a new draft being produced. From a procedural point of view, she clarified that the Committee should be checking the list of proposed amendments, to make sure that the proposed amendments had indeed been captured correctly in the new draft.

Mr Mjenxane said that the B version which Mr Filtane was reading from was the new draft. The Committee needed to read out the proposals from the A-list and deliberate whether those reflected what the Committee wanted. Members should then make sure that the agreed wording from the A list had been carried across into the B version of the Bill.

Adv Ramasala said the pages that were being referred to on the proposed amendments document were those from the original ESTA bill.

The Chairperson read through the proposed amendments in turn. After each, he asked for confirmation from the Committee Members whether they agreed with the amendments.

The Committee agreed with all the proposed amendments as included in the A-list.

Members then adopted the amendments, from the A list and as included in the B version, without making any further changes.

Draft Committee Report on the Bill

The Committee Secretary read out the draft report on the Bill.

Mr Mnguni proposed the adoption of the report, on behalf of the ANC.

Mr Walters said the DA was in support of the report, provided that the attendance as outlined in the report was corrected, as there had been an issue about that.

Deputy Minister Mcebisi Skwatsha congratulated the Committee on finalising the ESTA bill.

The meeting was adjourned.