The Department took the Committee through the Community Property Associations Amendment Bill (the Bill). The main purpose of the Bill was highlighted as seeking to amend the Community Property Associations Act to provide for a more effective and efficient functioning of the Community Property Associations (CPAs) themselves, including the introduction of minimum quorums at certain meetings where decisions to dispose of property were made, a more robust process in the Department around registration, checking and monitoring of the CPAs, and the setting up of the Office of the Registrar, who would take over a lot of the functions formerly handled by the Director-General. The Minister will appoint the Registrar. The Bill specifically set out provisions in relation to the formation of CPAs that were in place specifically to deal with the land restituted to labour tenants. There were further provisions to supplement the Act, in relation also to the management of CPAs that were placed under administration.
The new insertions highlighted included new sections 2A, 2B, 2C and 2D, which provide for the transfer of properties to CPAs; general plans for properties; establishment of the CPA office; and the appointment of the Registrar. It was noted that constitutions of CPAs had to be adopted at a meeting at which 60% of members of the CPA were present, specifically for the purpose of adopting that constitution. The Registrar is empowered to dissolve a CPA committee in some instances and appoint an interim committee. Immovable property may only be sold, donated or encumbered with the written consent of the Minister and again, only if at least 60% of the members of the community were present at a meeting where such a resolution was adopted.
Both the Department;s legal advisors and the State Law Advisers believed that the Bill was constitutionally sound. Because it contained provisions that impacted on traditional communities it was recommended that it should be dealt with as a section 76 Bill. The Office of the Chief State Law Advisers was also of the opinion that it is necessary to refer the Bill to the National House of Traditional Leaders.
Members asked questions about the role of the Registrar, and whether technical support would be provided Members had a discussion about whether it would be acceptable to place restrictions on the rights of people to use their land in certain ways, or to dispose of it; an ANC Member noted that the Committee had for many years emphasised that land restituted should be land properly utilised, but a DA Member said he would not support such restrictions because it could in fact further a person's economic empowerment if he were permitted to sell, particularly if the land was not yielding benefits to the owner. The main problem was seen as the fact that the processes to sell were often not legitimate or were not beneficial to the owners. Members asked where the Department currently was with the Bill, and heard that there had been administrative challenges in the Department itself which meant that the necessary notices were not gazetted timeously. Several Members expressed their concern and stressed that the Department must urgently address these issues. Further information was given about the distinction between a CPA and community, the new offences, and who would attend to administration, registration and dissolution processes. Members asked the reasons for requiring concurrence from the Minister of Finance, and were told that this was to address concerns about abuse of power in the CPAs. The reasons behind the introduction of minimum quora were similar and an attempt also to involve all CPA members in decision making processes. In conclusion the Department stressed that these amendments were an attempt to address the shortage of capacity in the Department to monitor by creating a specialist oversight function.
Communal Property Association (CPA) Amendment Bill: Department of Rural Development and Land Reform briefing
Ms Leona Archary, Acting Director General, Department of Rural Development and Land Reform, provided some background on the Communal Property Association Amendment Bill (the Bill). She noted that since the promulgation of the Communal Property Associations Act, 28 of 1996 (the CPA Act), 1 502 Communal Property Associations (CPAs) had been registered. The overwhelming majority of CPAs are facing operational challenges and compliance deficiencies, and despite intervention by the Department of Rural Development and Land Reform, there had been little success in resolving their challenges. These included, amongst others, the nature, structure and simplicity of the CPAs, lack of democracy in the Associations, abuse of power by persons elected to serve on the committees of the CPAs and the Department’s limited monitoring and oversight of CPAs.
The objectives of the Bill included the following: - providing for the establishment of the Communal Property Association Office (the CPA Office) - empowering the Minister to appoint the Registrar of the CPA Office - provide more detail on the functions of the office and for greater clarity on the CPAs - provide further protection of rights and interests in respect of movable and immovable property held by CPAs - provide for the formation of CPAs in respect of land restituted to labour tenants - further regulate the management of CPAs placed under administration.
The proposed amendments extend the application of the principal Act to:
- land restituted by order of any other competent court, not only by the Land Claims Court
- land restituted to labour tenants.
The new insertions into the principal Act include new sections 2A, 2B, 2C and 2D. These will, respectively, provide for the transfer of properties to CPAs; general plans for properties; establishment of the CPA Office; and the appointment of the Registrar.
There are also provisions that apply to CPAs in an attempt to reach better regulation. These provisions include:
- The constitution of a CPA must be adopted by 60% of community members present at the meeting which has been called specifically to adopt the constitution.
- The Registrar is empowered to dissolve a CPA committee in some instances and appoint an interim committee.
- Immovable property may only be sold, donated or encumbered with the written consent of the Minister, and only if at least 60% of the members of the community present at a meeting where such a resolution was adopted also agree to it.
- An association must give notice to the Department of Rural Development and Land Reform (the Department) of its intention to sell its immovable property and the Department shall have the first option to buy the property.
- A CPA may sell, donate or encumber movable property, with the consent of a majority of members present at a meeting of the CPA.
- In cases where such movable property was purchased with the financial assistance of the Department the CPA must first obtain the Registrar’s consent before it can sell, donate or encumber the asset.
Ms Archary told Members that both Department's legal team and the State Law Advisers are of the opinion that the provisions of the Bill are not in conflict with the Constitution.
She further noted that the Office of the Chief State Law Adviser and the Department shared the opinion that this Bill contains provisions that impact on traditional communities, which means that it should be tagged as a section 76 Bill. In addition, the Office of the Chief State Law Advisers is also of the opinion that it is necessary to refer the Bill to the National House of Traditional Leaders.
Mr P Mnguni (ANC) said the idea of having a Registrar for the CPAs seems like a good idea. However, he would like to get more detail on the role of the Registrar. He asked if there will there be technical support provided by the Office of the Registrar to ensure that people do not utilise the land for other non-lucrative initiatives. He wondered if the Department had given thought to the capacity of the CPA Office and to having a social capacity office by which disputes can be resolved. He would like to get more detail also on the duties of the Office and of the Registrar. He stressed that he believed the CPAs should be an organ to achieve the people’s economic empowerment and ownership. He asked for an assurance from the Department that t had considered the matter fully and that there were unlikely to be difficulties.
Mr M Nchabeleng (ANC) stated that this Committee had always expressed the strong view that people should be encouraged to find their land and keep it, instead of selling. He wondered if it was not possible to state specifically in the Bill that when people actually did get the restituted land they must not be allowed to sell it.
Mr T Walters (DA) was worried about this suggestion, saying that this might be tantamount to giving people land that they could not benefit from or do nothing in. He wondered if the CPA was actually addressing the real problem or only touching upon the symptoms. He emphatically, stated that he would be opposed to any suggestion that people acquiring land should not be allowed to sell it. If the asset of the land cannot yield any sort of fruits or benefits for the owner then it defeats the purpose of empowering people and ensuring that the inequality gaps are minimised in the country. The country should not be trying to stop people from trading their assets. The real problem that it was trying to address was that many of the processes for the sale were not legitimate or were being done by fly-by-night operators.
The Chairperson said that it was necessary to consider whether, in giving back the land, government was trying to address financial restitution or land restitution. If people are going to be given the land and then dispose of it for financial gain, it does, to some degree, defeat the purpose of the land restitution process.
The Chairperson stated that the issue of the Annual Reports was a challenge to the Committee, because this Committee had to ensure that what the Department was doing was both in line with the Public Finance Management Act and the principal CPA Act.
Advocate Hilton Toolo, Chief Director: Policy, Department of Rural Development and Land Reform, stated that the last step, which was currently where the Department was, involved getting confirmation from the Office of the Chief State Law Advisor that it is satisfied with the Bill. That Office had studied the Bill and was satisfied that it was compliant with the Constitution. The Department unfortunately had become aware only at a fairly late stage that it had not actually published the government notice about the Bill, and the reasons for that failure were not particularly substantive. The Department had been assured that the notice will be published in the Government Gazette on the following Friday.
Mr Mnguni stated that the Department needed to improve in ensuring that the administrative issues are dealt with so that it can move towards the finalisation of the Bill. He complained that the Department had not actually disclosed enough information about what exactly was causing it to stall the process.
The Chairperson agreed that it is important that the Department follows all processes to the letter. This Committee was tired of hearing about challenges, and these challenges were slowing down the momentum and frustrating Parliament in getting the legislation through.
Ms Archary apologised profusely to the committee, stating that there were a number of administrative issues that were responsible for these challenges but assured Members that the Department was certainly addressing them.
Advocate Toolo also apologised, stating that it happened under his watch and should not have happened.
Adv Toolo then addressed the other questions. In relation to dissolution, he noted that section 13(3) of the principal Act dealt with the registration of a CPA. Under the terms of the principal Act it had been the Director-General who processed the applications for the CPA. That had now been amended to be one of the function of the Registrar. It was therefore necessary to have similar provisions around provisions around the dissolution by the same process.
He noted that the new offence introduced is only applicable to financial matters in the CPA.
He noted that the distinction between a CPA and a community, is that the CPAs were established to administer the affairs of the community. In actual fact they were quite close in nature. However, the CPA within the community would administer the affairs relating to property that has been given back to the community.
He noted that clause 13 was substituting section 13 of the principal Act. That spoke to the administration of a CPA by order of the a court. The administration would be done by the Registrar; again, this was something that had formerly been done by the Director-General of the Department.
Mr M Filtane (UDM) asked if it is not a laborious process to require the Minister of Rural Development and Land Reform to seek concurrence of the Minister of Finance, because basically the person appointed will be serving as an interim service provider. He asked whether this could not perhaps be changed to some other system.
Mr Sam Mogaswa, Acting Director, Department of Rural Development and Land Reform, stated that the Department was particularly trying to avoid the situation where there could be an abuse of power in the CPAs. He noted that this was one of the recurring concerns expressed during the Department's CPA conference in 2012.
Mr Mogaswa added that the challenges listed in the presentation are not the complete list of challenges that are experienced in the CPAs, but they were the underlying and most common challenges which hold more substance. The amendments were informed by the challenges that were put forward by the participants in the workshops. He fully agreed that the Department will need to look at the administrative and operational challenges of the CPAs. The intention was that CPAs will still function as they were, but the Department seeks to close the loopholes that have been identified.
The Department indicated earlier that one of its own challenges relates to its own capacity, which means that the Department is limited in its ability to monitor and do oversight. It was hoped that these amendments should address some of the issues and also would address the need to have a component that would be monitoring the CPAs in future. Having people that are solely focused on the operations of CPA would make it easier for the Department to monitor the oversight functions.
He next addressed the issue of the approval of the constitutions of the CPA. In the current process around registration of CPAs, there were legal staff at the provincial level who must look at every constitution that had been drafted, prior to that constitution being submitted to support the registration of a CPA. At the national level, there was also a specialist function.
He explained that the introduction of minimum quorums is aimed at ensuring that the majority of the members of the CPA are involved in decisions that are taken in the meetings. Once those decisions have been taken the Minister must be notified in order to be satisfied that all due processes and procedures have been followed, and that the requisite number of members took part in the decision-making process.
The Chairperson thanked the Department and repeated that the Department must ensure that all the administrative issues that are causing the process to slow down must be dealt with decisively, so that the Department and the Committee can move forward with the Bill.
The meeting was adjourned.
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