Restitution of Land Rights Amendment Private Member Bill: briefing, with Minister

Rural Development and Land Reform

05 October 2017
Chairperson: Mr P Mnguni (ANC) (Acting)
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Meeting Summary

The Acting Chairperson presented the memorandum of the private bill that he initiated, the Restitution of Land Rights Amendment Bill. The draft bill proposes certain amendments to the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994) (‘‘the Act’’), to extend the date for lodging a claim for restitution to five years after the commencement of the Restitution of Land Rights Amendment Bill, 2017; to make it an offence to prevent, obstruct or unduly influence a claimant or any other person from pursuing his or rights as provided for in the Act; to criminalise the lodgement of fraudulent claims; to regulate the appointment, tenure of office, remuneration and terms of conditions of serves of judges of the Land Claims Court (‘‘the Court’’), and to further amend certain provisions aimed at promoting the effective implementation of the Act.

The Acting Chairperson said he was proud of the intention behind the draft bill and hopes that it will succeed. He encouraged the Honourable Members to consider the land crisis and the impatience of the dispossessed. He added that people who are forced to wait for their demands to be met for too long react in ways that may put food production and other aspects of the economy at risk. It is necessary to meet the demand for land as soon as possible, before things come to a boiling point.
 

The DA was concerned about the difference between re-wording the law passed in 2014 and actually resolving land rights issues. It argued that the Committee has not disputed the DA’s comment about the socio-economic impact study that said that, in the existing framework, it will take 120 years to resolve restitution. The DA said it was not opposed to land reform and land claims, but it was concerned with the continuation of existing problems. The DA said it would prefer to see entirely new legislation that will stand the test of time. They are not sure if this piece of legislation is enough or not.
 

The ANC stated that it does not matter how long the restitution process takes, even if it is 120 years, as long as it gets done. The party was pleased that the amendment bill is desirable and in line with the Constitution.

The Committee noted that it has ten months to return to the Constitutional Court, though it may need an extension. Stakeholders who made written submissions on the draft bill may be invited to public hearings later on.

Meeting report

Briefing on Restitution of Land Rights Amendment Bill
The Acting Chairperson introduced the Bill to the Committee and said that during this meeting he would focus on the objectives behind the bill.

The Acting Chairperson highlighted that any member of Parliament may introduce a bill regardless of legal background (i.e., having an LLB) and then is assigned a drafter with legal expertise. Unfortunately, the drafter for this bill was not present. Therefore, the Acting Chairperson said that this meeting would not focus on the legal perspective or go through each specific clause of the bill.

The Acting Chairperson confirmed that the Chamber of Mines’ submission on the draft bill, among others, was received by the Committee. He detailed the different places that the call for comment on draft bill was advertised in the media, emphasising that the Bill was published in the Government Gazette. He was certain that the period for submissions was sufficient, as it was extended to double the normal time.

The Acting Chairperson said as many as eight million people were anticipated to apply for land claims, but only 80 000 people, or one percent of the anticipated number, actually applied by the close of the application window in 1998. One percent is not enough. Of those 80 000 claims, about 6 600 have yet to be finalised in 2017.

He explained the process that the draft bill went through, which lead to it being referred to the Portfolio Committee on Rural Development and Land Reform.

He repeated that he would not be reading the bill but rather the memorandum on the objects of the bill (find this at the end of the bill).
 

Paragraph 2.2 states that the restitution process that ended in 1998 was inadequate.

Paragraph 2.3 states that according to estimates at least 3.5 million individuals were forcibly removed from their land as a result of racially discriminatory laws and practices implemented after 19 June 1913, especially between 1960 and 1982. It has been argued that this figure excludes dispossessions that were caused by betterment planning and homeland consolidation. When dispossessions that took place as a result of betterment and homeland consolidations (which also included dispossessions of rights in land held by white people) during the same period are taken into account, the figure could be closer to 7.5 million, whilst less than 80 000 claims for restitution were lodged with the Commission before the cut-off date of 31 December 1998. These figures do not take into account the fact that some of the dispossessions of rights in land, particularly in urban areas, did not involve the physical removal of people.

Paragraph 2.4 states that the Amendment Act of 2014 reopened land claims until 2019, but the claims that were lodged are ‘frozen’, because the National Council of Provinces (NCOP) failed to fulfil its obligation to public participation and therefore the amendment was declared unconstitutional and invalid. However, those claims are protected. The problem was with the NCOP, and they cannot initiate legislation.

Paragraph 2.5 proposes that the lodgement period be open for 5 years. However, the Acting Chairperson questioned why the process cannot be open indefinitely, and asked the Members to consider that discussion. He was open-minded about that possibility, though he acknowledges that this could result in the same claims being re-hashed over time. He added that five years would be appropriate because 1.5 of those years may be spent setting up the necessary administrative structures and the applications will not appear the moment the president signs the bill. However, he was open to discussing this.

Paragraphs 2.6 and 2.7 state that the claims lodged before 1998 (‘old claims’) had to be processed before the claims lodged between 2014 and 2016 (‘new claims’). Exceptions should be made if a new claim could help in the decision-making process around an old claim, for example if there is a contestation of an old claim within a new claim. The Acting Chairperson also considered exceptions in emergency situations, comparing it to an ambulance in the flow of traffic. What if it is in the best interest of the public to restitute land to a community that submitted a new claim and then suffered a natural disaster? Should they get priority over all of the old claims? What would priority (in the name of justice and fairness, not nepotism) mean in this scenario? He asked the committee to consider these sorts of exceptions for the bill, as well.

Paragraph 2.13 states that the draft bill makes it illegal to prevent, compromise or obstruct a claim or lodge a fraudulent claim. Paragraphs 2.14-2.20 are about the setup and process of the Land Claims Court, because land claims are supposed to ultimately end up there, and the measures set up in the bill will help judges from avoiding the court.

Paragraph 3 states that the Department of Rural Development and Land Reform and the Commission on the Restitution of Land Rights had been consulted on the Bill.

The Acting Chairperson asked the Land Claims Commissioner if it would be just to allow restitution to remain closed after 1998.

Paragraph 4 states that it is not possible to determine what the financial implications would be as a result of extending the period for lodging of a claim of restitution to five years after the commencement of the Restitution of Land Rights Amendment Act, 2017, as this will be directly influenced by the number of claims lodged as well as the extent of such claims.

The Acting chairperson asked the Department about the socio-economic impact. In his view, the same study on socioeconomic impact from 2014 is still applicable today, despite the fact that the NCOP did not fulfil its obligation in 2014.

Paragraph 5 states that the draft bill should be referred to the National House of Traditional Leaders.

The Acting Chairperson said he was proud of the intention behind the draft bill and hopes that it will succeed. He thanked the Minister for his assistance and the Honourable Members for their attention. He tried not to worry about the next steps in the legal process when he drafted the bill, and rather considered what was in the best interest of the public. He encouraged the Honourable Members to consider the land crisis and the impatience of the dispossessed. In comparative studies, people who are forced to wait for their demands to be met for too long react in ways that may put food production and other aspects of the economy at risk. It is necessary to meet the demand for land as soon as possible, before things come to a boiling point.

The stakeholder submissions will be forwarded to the Members so that they may consider those as well. The Acting Chairperson also requested that the legal section of Parliament comment on the draft bill.

Discussion

Mr M Filtane (UDM) asked to appoint someone else to chair this stage of the meeting proceedings so that the Members would be more comfortable when they raised their questions to the Acting Chairperson.

Mr T Walters (DA) was fine with Mr Mnguni chairing the meeting, as he would prefer that someone from this Committee with background knowledge chair proceedings.

Mr E Nchabeleng (ANC) agreed.

The Acting Chairperson said that he was flexible, but if at any point Members felt that there was a need for objectivity, they should indicate so and they could appoint a different chair. He did not think that there would be a problem. He also asked the Members to hold off on other questions until after they heard from the legal section about whether or not they had legal clearance.

Adv Nduthando Mpikashe, Legal Advisor to Parliament, indicated that they had clearance. The draft bill is constitutional.

The Acting Chairperson said that the Committee Secretary would deal with the procedural issues. The content issues would be dealt with now.

Mr Filtane asked whether Members wanted to deal with the memorandum or the actual bill.

Mr Walters said that the DA respects the fact that this bill was brought forward and that it is mindful of the urgency behind the bill, given the land reform needs in South Africa. Land is a key step in moving to the future. The DA is concerned about the difference between re-wording the law passed in 2014 and actually resolving land rights issues. He wants to deal with the lack of capacity and lack of budget issues that the Committee has been hearing about. This Committee has not disputed the DA’s comment about the socio-economic impact study that said that, in the existing framework, it will take 120 years to resolve restitution. The DA is not opposed to land reform and land claims, but it is concerned with the continuation of existing problems. To what extent is this fresh legislation? To what extent is it up for complete re-wording? How can the processes instil confidence that past challenges have been dealt with?

He also asked how this draft bill aligns with the need to address unfunded mandates, communication issues, and the need to create an institutional framework around land reform. The DA would prefer to see entirely new legislation that will stand the test of time. They are not sure if this piece of legislation is enough or not.

Mr Filtane appreciated the Acting Chairperson’s initiative. He wanted clarification on the process, such as public hearings. What is the Department of Rural Development and Land Reform’s take on the bill? Should the Committee look at this draft bill as a substitute for the nullified Act of 2014? Would the Acting Chairperson want to accommodate claims on land taken before 1913? The Expropriation Bill from Public Works addresses this.

He turned to paragraph 2.8 of the Memorandum and asked why the Court is involved.

He referred to paragraps 2.14 and 2.15 of the Memorandum and asked whether deciding what judges would do was under the purview of the legislature, or whether it was under the purview of the judicial branch.

He pointed to paragraph 4 of the Memorandum and asked for specificity about the written results of the socio-economic impact study, so that its omission will not be preventative to the success of the bill. Members of Parliament will still ask about the impact, even if it is not in the amendment.

Mr Walters was unconvinced that the Committee should not have a fresh look at the original legislation and then come up with a comprehensive set of amendments. He reaffirmed that the DA is in favour of a comprehensive look at the original legislation in order to ensure the rapid and effective delivery of justice.

Mr Nchabeleng stated that it does not matter how long the restitution process takes, even if it is 120 years, as long as it gets done. He referred to the statements made during the struggle, “freedom in our lifetime,” made by those who died before freedom was achieved. He said that Parliament’s work is all about long-term change, and called for the Committee to soldier on. Is this law desirable? If it is, then it needs the work put into it. Nothing should stop them. If needed, the Committee can rework the whole draft bill and come back with something else. He is pleased that the amendment is desirable and in line with the Constitution.

Mr A Madella (ANC) reminded the Committee that they needed to go back to the Constitutional Court within a specific time frame, as instructed by the Court.

Mr Walters stated that the Committee is in agreement that historical injustices need to be addressed; what is debated is how they should be addressed. The DA supports an approach that will not take 120 years; he appreciated Mr Nchabeleng’s sentiments, but if it can be done better in less time, that is preferred. The Committee still has not addressed original concerns around the 2014 bill. If there is going to be a motion for desirability, the DA will abstain from such a vote until more details are worked out about the scope of the bill.

The Committee Secretary stated that a motion of desirability was not on the table for this meeting.

Adv Mpikashe said that Parliament pays for private members’ bills, such as this draft bill put forward by Mr Mnguni, because it is a constitutional right of Parliament. She added that this Committee has the right to amend the act in terms of the actions of judges, because it is dealt with in the original version of this Act.

The Acting Chairperson said that the Human Sciences Research Council (HSRC) actually estimated that it would take 144 years to complete the land restitution process. He agrees with Mr Walters’ concerns about time, but the HSRC’s estimation was of the time needed for the whole process of land reform, not specifically the restitution process.

Mr Nchabaleng asked for the Committee to move on.

The Acting Chairperson said the Committee has plenty of time ahead, but he trusts the feeling of the committee.

The Acting Chairperson thought the HSRC was referring to the entire land reform process, not only the restitution process. But the draft bill leaves room for further discussion. He said that ongoing amendments must deal with issues of capacity and budget. He is open to re-wording and proposing a Committee bill after this amendment, so the Committee can resist the status quo. He encouraged his colleagues to consider initiating bills that would fast-track the land restitution process.

He said that this is not really a substitution of the 2014 Act. He acknowledged that there are both similarities and differences between the old Act and this amendment. He pointed to where he states that there would be a “five-year period” for applications, rather than giving a specific end year as the old Act does. He does not want to plagiarise the 2014 Act. There might be a lot of overlaps, but only if the drafter felt that there were useful parts of the 2014 Act.

He said that considering restitution for pre-1913 dispossession is a constitutional question. He would love to go back as far as possible, given that his family name is Mnguni, but is limited by reality. Further bills need to be initiated that address pre-1913 dispossession. But should we go back before 1652, and address wars that were happening here at that time? He sees this draft bill and the limitation to post-1913 dispossession as a stepping stone to engagement. He asked for the Committee, NGOs and academics to consider how to deal with claims from before 1913.

He said that paragraph 2.8 of the Memorandum refers to the Court in terms of the existing framework. In the existing framework, matters end up in court after finalisation. The section was simply “utilising the existing space.” Otherwise the Commission has to decide what to do.

He requested that the Committee refrain from more questions in order to hear from the Minister. They have ten months to work on this. After this briefing, he no longer has authority over the draft bill; it is all up to the Committee.

Ms Nomfundo Gobodo, Commissioner of the Commission on Restitution of Land Rights (CRLR), said that the CRLR needs the tools to address the claims. It received 153 000 claims in the 2014-2016 window. It will use the amendment bill as a tool to settle the existing claims.

Mr Gugile Nkwinti, Minister of Rural Development and Land Reform, asked whether this bill was the best tool to achieve justice. It is always a moot question until it is done. It should be put to the test. For example, a group of people said that they were removed as two communities, but when one community lodged their claims during the open application window, the other community did not. The first community does not feel that justice has been achieved. In one meeting that he attended, there were 1,496 attendees; many of them had already gotten their land back, but they were still worried about the others who did not.

The Acting Chairperson asked the Minister to comment on the socio-economic Impact assessment.

Minister Nkwinti said that they would have to check and get back to the Committee on this.

The Acting Chairperson said he would give feedback to the Chairperson about this meeting. The Committee has ten months to return to the Constitutional Court; it may need an extension, but will assess this later. The NCOP process tends to be more tedious. Stakeholders who made submissions might be specifically invited to a later Committee meeting when hearings take place; they will positively influence the discussions. The Committee has now been briefed, so it is up to the Committee Secretariat and the permanent Chairperson to programme it for public hearings and so forth.

Minister Nkwinti gave an information sheet to the Committee and then had to depart.

The Acting Chairperson read to the Committee: R804 million was asked by the sellers of a piece of land, but the price was negotiated to R629 million. The Department saved 29.4% and many properties will result from that land.

The Acting Chairperson thanked the attendees and professional team that coordinated the meeting.

The meeting was adjourned.

 

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