The Department of Rural Development and Land Reform (DRDLR) came before the Committee to respond to some of the issues that had been raised during the public hearings on the Communal Property Association (CPA) Amendment Bill.
The presentation was a response to the fears expressed by communities on the possibility of being deprived of their ownership rights through the amendments. Concerns had also been raised about the laborious processes that were required to meet certain conditions stipulated in the Amendment, such as the stipulation that a letter had to be collected from the Registrar before a bank account could be opened in the name of a CPA, and the need for 60 percent majority approval prior to the sale of a property. There was a need for the Department to clarify the ownership of properties, and to explain why CPAs should exist in areas where there were traditional leaderships. It was also asked to include a definition of ‘beneficiaries’ in the Amendment Bill.
The Department clarified the various issues by providing explanations for each of the clauses that were under review. It said the ownership of the properties belonged to the beneficiaries, but in the past the CPA had assumed ownership and had sold land without the knowledge of the beneficiaries. The requirement for 60 percent majority consent, and the consent of the Minister, had been introduced to protect the beneficiaries and to reduce the ease of disposing of the properties. If there was a need to dispose of a property, it gave the state the first opportunity to purchase it through the provision of the ‘Right of Refusal’ clause in the Bill. It was emphasised that the amendment did not take away the right of ownership from the beneficiaries. Furthermore, ‘labour tenants’ had been added to the definition of ‘community’ in the Bill.
Members suggested that beneficiaries were being encouraged to sell their land through the clauses that provided for the sale of the land. They required clarification on the definition of ‘community’, ownership rights, and the rights of labour tenants as specified in the Amendment Bill.
The Chairperson recalled that comments had been received during the public hearings on the Communal Property Association (CPA) Amendment Bill. She said the issues had been isolated and forwarded to the Department of Rural Development and Land Reform (DRDLR) for clarification. Therefore, she called on the Department to provide clarity for the Members on the issues as a way of proceeding with the Bill.
DRDLR: Clarification of issues
Mr Mcebisi Skwatsha, Deputy Minister, DRDLR, introduced Advocate Sello Ramasala, Head of the Department’s Legal Unit, and called on him to make the presentation.
Adv Ramasala highlighted the clauses that the issues referred to, and the response of the DRDLR. One of the concerns had been that the word ‘beneficiaries’ used in the Bill should be defined. The Department did not think there was a need for the Bill to define ‘beneficiaries’, as the beneficiary was the person to whom the land was restored. He said beneficiaries were identified by the CPA constitution, in Item 5 of the Schedule to the Act.
Secondly, there had been recommendations that the Act should not apply to the areas under the jurisdiction of traditional councils. He said nothing prevented traditional council members from becoming members of a CPA if the Committee allowed it, and the existence of a CPA and a traditional council was not mutually exclusive.
On the submission that the application of the Bill to labour tenants deprived them the right to property, he said there was no aspect of the Bill that compelled labour tenants to establish CPAs.
The submission had been made that the requirement for a general plan was time-consuming and unnecessary, but the Department’s view was that planning was important for spatial planning and land use management.
In response to the issue of the power of the Registrar and the letter for opening accounts and dissolving CPA committees, he said regulations of CPAs necessitated a closer monitoring of entities responsible for managing and administering community property, because such communities were protected against impropriety with regard to their land. The need to get a letter from the Registrar before opening a bank account was important, because in the past individuals in the CPAs had used some of the loopholes to divert the funds.
He said the 60 percent majority requirement to adopt a CPA was made to ensure a sufficient consensus. The amendment also clarified ownership and did not take the right of ownership away -- it clarified that the property belonged to the community, not the CPA, because the CPA was only an agent. Though the provision was seen as depriving the CPA of the land, the land was not owned by the CPA or the state but belonged to the beneficiaries. Also, a 60 percent majority was required when a beneficiary intended to sell a property because there was a need to ensure consensus. There had been reported cases where land had been sold without the knowledge of the beneficiaries in the past. The consent of the Minister was required as an endorsement that the right process for selling the property was followed by the CPA and to protect the community against acts of impropriety.
Referring to the complaint on the right of refusal granted to the Department in the disposal of property, Adv Ramasala said the property was not obtained at a cost to the state and the state must get a preference if the community wished to dispose of the land. The Bill did not exclude the application of customary law in areas where CPAs were established. The Act had made provision for the termination of membership in Item 9 of the schedule of the CPA’s constitution.
He said the issue in Clause 1 was that ‘community’ did not distinguish between the actual beneficiaries and other community members, and explained the word ‘community’ as used in this context referred to beneficiaries -- the people that had the right to a particular communal property. This was explained in the Schedule to the Act and in Item 5.
There were people who believed that a CPA must not exist in places under traditional authorities. He said the formation of the CPA was dependent on members’ desire to belong to a CPA, and if members previously owned land, they could retain their land.
Mr T Walters (DA) asked if the legislation had incremental changes, and suggested that there might be a need to rethink the fundamental objective of the Bill. On the right of refusal for the disposal of properties, he said he was sympathetic with fact that people were not able to do as they wished with a property though they owned it, but he understood that such liberty might defeat the purpose of the land reform and short change the financial investment on the reform. He recommended it should be stated that a stipulated amount should be refunded to the state if beneficiaries intended to sell, and the amount should vary based on the number of years after the property had been restored to the beneficiary.
Mr S Matiase (EFF) said the expropriation of land without compensation was central to the discussions on land issues. There was need for a review to be able to look holistically into the issue of land and the need to expropriate it without compensation. He asked if the Act had jurisdiction on land owned by traditional communities. What had the Department meant when it said ‘the labour tenants have a choice?’. He asked what options were available to the labour tenants, because they did not have security of tenure and therefore had no right of ownership. He said the requirement of the 60 percent in Clause 7 was needed. He asked on whose behalf the CPA administered money, and recommended a clarification between the function of CPA committee members and the beneficiaries. Why should the CPA or a beneficiary be encouraged to dispose of the land after the effort made by the state to ensure that the right beneficiaries acquired it? Who was assigned the responsibility to dispose of the land -- was it the CPA, a community member or beneficiaries? He expressed concern over the use of the word ‘property’, as this made it seemingly right to dispose of it at will. Although he agreed with the requirement that the Minister’s consent should be sought when disposing of the land, he proposed that any proposal that suggested the disposal of the land should be avoided.
Mr E Nchabeleng (ANC) said the country was learning from other countries. African people always owned land as a communal property, and not as individual property. The management of land had been through the traditional leaders. Land was a scarce resource, and when it was given to people they must consult with the government if they wished to sell it, so he agreed that the Minister’s consent should be sought. Also, the Valuer General should know about such land sales. The possibility of nationalising the land had been debated in the Committee, and if the land was nationalised, then it would belong to the state and the state would distribute it accordingly.
Ms T Mbabama (DA) said the dignity of the people must not be taken from them in the process of restoring the land. Although she was not against the requirement that the consent of the Minister should be sought, it was important was to educate the beneficiaries on how the land should be handled rather than assuming that they lacked the capacity to reason effectively.
Mr P Mnguni (ANC) said the submission on nationalising the land was a good one. He had not received a response on the ownership of the land. The people had said the amendment was reducing the CPA to a management body, rather than the owners. Boundaries and perimeters kept shifting, and land had to be pinned through geographical surveys. Land should be a measurable entity that had a spatial definition. The Department must convince the Committee that the amendment did not reduce a CPA to a management body. He agreed with about 90% of the presentation of the Department. He asked the Department for the definition of a community and the importance of the community as a concept in Clause 3 (2A (5)). The stakeholders had raised a plausible argument that the use of the word ‘community’ in the Clause was ambiguous. He expressed concern about the reason given by the Department for the change in Clause 8 (b). He said the beneficiaries owned the land, and this was in isolation of the community. There were 1 502 CPAs across the country, and there was a need for registrar who would ensure uniformity and professionalism across the CPAs. He disagreed with the idea of assuming that people were able to think for themselves, as suggested by Ms Mbabama. It might follow the same way as people did with the Integrated Residential Development Programme (IRDP) houses, by selling them at prices that were lower than it had cost the government to provide them. There was therefore a need to include the Minister’s involvement as a requirement before the lands were sold. It would not be correct to say that the land did not belong to the CPAs.
Mr Walters said the example cited by Mr Mnguni, which suggested that people sold their IRDP houses, was not evidential. One of the challenges in dealing with such issues was the non-availability of data upon which important decisions could be made.
The Chairperson said the Committee must remember that the deliberation was on the submissions during the public hearings. Issues had been raised concerning CPA executives. They had been indicted in the fraudulent process of sales of properties without the knowledge of the beneficiaries. The public had said the Registrar should not be a Departmental official, because some Departmental officials were also indicted as a part of the problem through their corrupt practices.
Adv Ramasala said the definition of ‘community’ was available in the Act, and the only change that had been made to the existing definition was the addition of labour tenants. The labour tenants had a choice of forming a CPA. He read the definition of ‘community’ as written in the CPA constitution, which said ‘a community was a group of person whose rights to a particular property were determined by a shared rule and written constitution (CPA constitution) and which was required to form a CPA’. The definition of the community was not new and had not been disputed before now.
Secondly, on the issue of ownership and management, he said the CPA had never had the property as its own. The definition was that it acted as an agent on behalf of the beneficiaries who were the members of the CPA. The CPA assumed it had the power to treat properties as if they belonged to it. He emphasised that the amendment did not take away ownership from the beneficiaries. The procedure for the disposal of the properties was a policy procedure which the Committee may decide upon.
He said the Bill dealt with CPAs, and the CPA Act would apply wherever a CPA was formed. The 60% of CPA members required to endorse was for the sale of a property in favour of the beneficiaries. The provision was not to encourage the disposal, but to protect the beneficiaries from losing out to the CPAs should a case arise where they wanted to sell their properties.
The labour tenants had the choice to form a CPA. This referred to labour tenants to whom land had been restituted and had ownership rights over the land. The community must decide through a 60 percent quorum when to sell a property. This provision was not meant to encourage the disposal of the land but to deal with its possible occurrence.
The role of the Department on assisting and educating members was included in the function of the Registrar. The qualification and designation of persons for the position of Registrar, and if it would be independent or autonomous, may be decided by the Committee.
Ms Tshepo Mahlaela, Legislation Specialist: DRDLR, said the process presented an opportunity for the Minister to look into the process of disposing of a property and gave the state the first opportunity to buy a property. The 50 percent majority plus one did not work, and this necessitated the proposal for a 60% majority to be in agreement in the process of disposing of a property.
Deputy Minister Skwatsha said the IRDP houses also had years stipulated that must be met before beneficiaries could sell them. It was true that people could think for themselves, as highlighted by Ms Mbabama, but due to poverty people made decisions that may not necessarily benefit them when they were overwhelmed by needs. This might be the reason that people chose to sell land below what it had cost the government to restore it to them. Poverty made people choose money over their property. There was a need to include the requirement for the Minister’s consent so that people did not sell below the cost incurred by the government and the actual value of the land.
He said CPA was the committee that took decisions on behalf of the community. The Department would clarify any ambiguity on definitions. The decision had been taken to implement the expropriation of land without compensation and without disrupting food security. There would be more deliberation on the implementation of the policy. The leadership of the ruling party was concerned about the expropriation of land without compensation, and they were working hard to ensure that it was implemented.
Mr Matiase said he was interested in the implementation of the expropriation of land without compensation. The ownership of land on the basis of race should be ended.
Mr Walters raised a point of order that Mr Matiase had abused the platform, and recommended that the Committee should stick to the agenda.
Chairperson agreed with Mr Walters that the Committee should stay focused on the amendment of the Bill.
Mr Matiase again reiterated his concern about the Clause that stipulated a 60 percent majority when land was to be disposed of. He said it would encourage beneficiaries to dispose of their land, and such clauses must be removed from the Bill.
The Chairperson said Advocate Ramasala had earlier responded to the question asked by Mr Matiase, but asked Adv Ramasala if he would like to add to the previous submissions on the question..
Adv Ramasala said people who had property had the right to dispose it if when they deemed fit, but conditions had been attached to check the detrimental effect of exercising this right. The requirement for a 60 percent majority, and Minister’s consent, had been inserted to reduce the inappropriate disposal of properties.
Adoption of minutes
The minutes of the meeting held on 8 November 2017 were adopted, with a minor amendment.
The meeting was adjourned.
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