Communal Property Associations Amendment Bill: Department response to submissions; with Deputy Ministers

Meeting report

The Chairperson said the meeting was a follow up to the public hearings from which the Department had received a wide range of views.

Institute of Poverty, Land and Agrarian Studies (PLAAS) submission
Mr Nkanyiso Gumede, PLAAS researcher, said they welcomed that the state would invest more financial and institutional resources in supporting Communal Property Associations (CPAs). However, they opposed the implication that CPAs would only administer and manage land while another entity owned it, thereby weakening the powers of CPAs to jointly own and manage property.

PLAAS welcomed the provisions on the much-needed establishment of a Communal Property Associations Office and Registrar in the Department, and their responsibility to provide support to CPAs, but argued that the definition of such support was vague and open-ended. PLAAS supported the removal of the provisions for registration of provisional CPAs.

PLAAS said Section 8(b) the Bill made a major change to the main purpose of a CPA: from owning (‘holding’) land to ‘administering and managing’ land. Section 18A(7) proposed the transfer of ownership to communities “group of persons, including labour tenants…whose rights to a particular property are determined by shared rules under a written constitution...” and PLAAS’ view was that the ‘community’ could not own land. Only a legal entity could own land, in the name of a community, and that the legal entity created for land reform purposes was the CPA. Should the Amendment Bill be passed as such then it appeared to undermine the original intent of the CPA Act. The limited administration and management role envisaged was in effect an expropriation of existing CPA property rights.

On the extension of provisions to labour tenants, PLAAS said that the CPA Act had always governed labour tenants if they established a CPA. The emphasis on labour tenants to establish a CPA in the Amendment Bill suggested that the state may retain ownership of commercial farmland when settling labour tenant claims or redistributing land, while ownership may be transferred to traditional councils in communal areas. In both cases, however, residents did not become landowners themselves, and their rights were contingent on the ownership of this land by the state or by traditional authorities. In addition, the Bill provided for very extensive state powers over community land, and increased the Director-General and Registrar’s authority to provide or withhold consent for key community decisions. Section 12(1) gives the Director-General, the Department and Registrar ultimate decision-making power in terms of any transaction pertaining to land and the right of first refusal should the CPA decide to sell the land. PLAAS said that if the state wanted to protect communities from the abuses and excesses of the CPA executive, it could develop a mechanism to ensure that proper procedures were followed.

On Section 2A, on the general plan, PLAAS said that the clause addressed land use, while failing to address the failure to clarify internal allocations of land rights, which was widely recognised to be a key cause of dysfunction in CPAs.
 
PLAAS recommended that:
• the Bill not be passed in its current form, that it be withdrawn and redrafted after due consideration of submissions received from the public.
• a public debate on whether or not black South Africans should receive land with full ownership rights, be called for, or their equivalent in law, when they are beneficiaries of land reform processes of various kinds, including land restitution, land redistribution, the reform of the status of labour tenants, and communal tenure reform.

Prof Ruth Hall, Associate Professor at PLAAS, said the main issue was that the Bill should not be seen in isolation, it had to be seen in relation to the Community Land Tenure Bill and the Traditional and Khoisan Leadership Bill.

She said that the CPA was in effect the community. The 1996 CPA Act’s function was to allow that a community could own, hold and manage land jointly. In the new Bill, the community would not own and hold land but would only manage and administer land. Community was not a formally recognised legal entity like a CPA or a trust, so in the new Bill, people’s land rights would be diluted. The State would be owning the land on behalf of the community and this would be a move back to Bantustans She said the High Level Panel on the Assessment of Key Legislation report discussed on a TV show the previous night had shown there were serious concerns about the degree people are enabled to own and manage their land.

Department response to submissions
Adv Sello Ramasala, Legislative Specialist, DRDLR, responded that the premise of the PLAAS submission was based on misunderstandings; for example, on state trusteeship. There was no intention to transfer property as could be gleaned from the Long Title of the Bill. The term ‘community’ was defined in the Act and in the Bill. The definition of ‘community’ in the Bill was an amendment of the existing definition and the only change was to insert the labour tenant component and the definition was not of a broader community but of a certain group of persons including labour tenants whose rights to a particular property were determined by shared rules under a written constitution. This was not a community in the Land Tenure Act. The community was as governed by a constitution and members had to be identified by name or ID number. There was no intention transfer land from a CPA to a community as understood by a broader definition. The PLAAS premise was different and so its conclusions and deductions would be incorrect. The same could be said on the matter of expropriation with regards to labour tenants. This was not the intention of the Bill.

Adv Ramasala said the CPA administrators over the years had assumed the role of being the owner and taken decisions without consultation with members and in some instances selling land. The Bill sought to make clear that the CPA was not the owner; it held ownership, not for individual members of the CPA, but for the community. This was the challenge of the current legislation, that the CPA was the owner, not the beneficiaries.

On the powers of the Minister being seen as being given wider powers and being overreaching, Adv Ramasala said it was to protect the beneficiaries and so the Minister had to give consent for land to be sold. The state would have bought the land to give to the communities and if the community wanted to sell that land, the state had to be given the first option to buy the land.

On labour tenants, he said that if labour tenants wished, they could form a CPA, but they were not forced to do so.

He said communal areas were being developed into malls and towns and so one could not say that there should be no planning. Planning was not a precondition, but there had to be plans when property developments were done.

Discussion
Mr T Walters (DA) noted that it appeared as if the different pieces of legislation were drafted in silos. He asked if the legislation would be operationally practical and how it would avoid the problems of bad management which was prevalent in CPAs because of a lack of operational clarity and he hoped that the Department would not drift into a mediating role for something that was not operationally and functionally working.

Mr D Gumede (ANC) said that if one looked at the principal Act, it acknowledged the difference between a CPA and the community. CPA members would be on a list or register, but might live in communities where people were not members of the CPA. In the Amendment Bill, the ownership rights would transfer land to communities which might not have a CPA. The Communal Land Tenure Act transferred land to communities. The communities were the communities found in the communal area. He did not think that traditional councils would agree to land being administered by CPAs and therefore PLAAS rejected this because it was taking power away from CPAs. This would cause chaos and would be a recipe for disaster.

On expropriation, Mr Gumede said the Communal Land Tenure Bill gave the communities an option between traditional councils, CPAs, and other entities, but if ownership was taken away from CPAs that ownership would rest with the traditional council whose legal standing currently was found to be wanting.

On labour tenants, Mr Gumede said that they have had their rights upgraded to ownership, but CPAs would no longer own but only administer and manage land. So where would labour tenant land ownership rest?

Prof Hall said that at the release of the High Level Panel on the Assessment of Key Legislation report on TV a key issue highlighted was that it was not acceptable for Parliament to pass key legislation, including on land reform and restitution, without attending to the recommendations of the Panel.
 
PLAAS was not clear whether the Bill was retrospective or whether the Bill applied to new CPAs only. If it was retrospective, it was illegal expropriation. If it was not retrospective, then one entity would own land, but another entity would do the transactions, and this was unconstitutional and would be challenged in court.

She asked why the CPA should not hold property and how could communities hold property while another entity transacted on it. She said the subtext was that legislation was being introduced where communities would hold land nominally. While they had a choice of choosing a CPA or traditional council, PLAAS expected traditional authorities would become the de facto owners.

On labour tenants, she said that labour tenants under the 1996 Act could claim the land that they held but the Labour Tenants Act had been weakly implemented.

On the general plans, she said the regulations on spatial plans were very rigid and she questioned the ability of the Department’s capacity to be able to implement it. The rigidity was appropriate for urban areas but was being imposed on rural areas.

She felt that rights given in the 1996 Bill were being taken away by the Amendment Bill.

Ms T Mbabama (DA) said that there appeared to be a gap in the legislation as it appeared to be read differently.

Mr Walters said his concern was that the legislation had to be one that took land reform forward and one needed to look at what was happening elsewhere, legislatively speaking.

Mr A Madella (ANC) said he was worried about the central disagreement on the definition of ‘community’. When land was restituted, the community could be broader than just the beneficiaries such as spouses, in-laws, children and friends for example that now constitute the community. The amendment appeared to want to entrench the rights to manage and hold their property. The challenge was that the other members of the community apart from the beneficiaries were taking part and acquiring rights they should not have. The wording of the legislation should be adjusted to reflect and protect the original beneficiaries.

Ms C Matsimbi (ANC) said the Department should go back and relook at the language being used in the Bill.

Deputy Minister Mcebisi Skwatsha said the meeting’s discussions were implying things that were never the intention of the Bill. There was no way the Department wanted to disown people from what rightfully belonged to them. What needed to be considered were the checks and balances for those who were elected to lead the CPA. They should not have the right to decide without the consent of the beneficiaries. In some instances, CPA executives take decision without the consent of the beneficiaries. Cases in point were when land worth R300m was sold at one third of the value of the land.

Mr Gumede said he differed with Mr Madella’s view. If the CPA was the same as the community, then why the transfer of ownership from a CPA to a community? He said in some communities the CPA and traditional councils co-existed and this resulted in conflict. The CPA was a list of community members, not just the executive of the CPA. If executives were doing wrong things in the CPAs, then the CPA executive should rather be held accountable. The CPA abuses were by the executive and not the CPA.

Mr Madella said the current Bill made provision for transfer, registration and surveying costs but the key criticism was the lack of participation of the community. The Land Survey Act was very technical legislation, but it did not speak to the participation of the community and this was something that needed to be looked at. Beneficiaries and land owners must have a say in how their land was being developed.

Adv Ramasala said there appeared to be confusion as to who the real owner was, whether in the old or the new Act. He said the only new thing in the new Act was the definition of labour tenants. Owners were the group of persons of a property and in this case the community, whose rights to a property was determined by shared rules under a written constitution. It did not include in-laws, children etc. and there had to be a list of these names of the group of persons. Confusion had arisen through the use of the word ‘hold’ in section 8 and the Department wanted to take this word out of the legislation because the CPA executive was acting as if it owned the land when in fact it was the beneficiaries who owned the land.

Prof Hall said PLAAS had a lot of experience of CPAs being dysfunctional because of the failure to clarify what the roles were. One of the suggestions following a review of CPAs in 2005 was that CPAs were entities that hold the land. There might be different entities operating businesses on the land but this was separate. Holding equalled ownership, and ownership was not the same as a business entity.

On the general plan, she quoted Dr Siyabu Manona, a planner, whose view was that a general plan was inappropriate, onerous and highly complicated measure.

On who owned land, if the community was the owner, then it had to become a legal entity. If communities owned and CPAs transacted on the land, it was a conflict and was equivalent to expropriation and so the word ‘hold’ was absolutely essential.

She said that the Bill needed to be thought about politically in the sense that there were other Bills and laws that would affect this Bill. The Minister had said that there should never be CPAs on communal land yet on the other hand beneficiaries could choose between going the route of the CPA or a traditional council,

Adv Ramasala noted other issues raised in the public submissions as being the application of the Act should not apply to areas under the jurisdiction of traditional councils, on how labour tenants could establish a CPA, on the functions of the Registrar, on the 60% threshold for the adoption of a constitution; and on the 60% threshold for the sale of community property (see document).

The meeting adjourned