Communal Property Associations Amendment Bill: deliberations; with Minister

Rural Development and Land Reform

14 February 2018
Chairperson: Ms P Ngwenya-Mabila (ANC)
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Meeting Summary

The Committee met with the Department of Rural Development and Land Reform (DRDLR) to discuss the amendments to the Communal Property Associations (CPA) Amendment Bill. It asked for clarity regarding the use of the words “community”, “labour tenants” and “property”, and phrases such as “public interest” and “disadvantaged communities”. Members of the Committee felt that the Bill was inconsistent throughout in its use of these terms and phrases.

The Committee highlighted the important need for social facilitation and an effective consultation process to assist communities to draft CPA plans. The Department agreed that the consultative processes were not sufficiently factored in, and that this needed to be rectified. This was also related to the need to ensure communities had easy access to the Registrar’s offices. Members urged that at least one Registrar’s office should be established in each province. It was unacceptable that members of CPAs should have to travel to different provinces to manage minor issues involving their Associations.

A legal specialist of the Department said that a problem with some CPAs was that they were hard to manage, and stressed the importance of creating legislation which would make people comply. The Committee was warned, however, that terms like “must”, if used in the Bill, would bring up further issues involving timeframes and budget considerations.

The Committee noted these concerns and cautioned against over-legislating, especially regarding issues of management, operations and compliance. It agreed that the use of terms like “must”, “may” and “will” needed careful consideration, but also believed that the budget constraints of the Department should not be a factor in the drafting of good legislation and regulations.

Meeting report

Mr M Filtane (UDM) reminded the Committee of the resolution which had been taken in the previous meeting to give Members some time to recap on the previous meetings’ agreements. He asked that the meeting agenda be amended accordingly.

The Chairperson said that there was a document in circulation which would help Members to recap on the previous meetings’ agreements. This was a way of implementing Mr Filtane’s suggestion.

She asked the Committee to consider the minutes of 30 and 31 January, and 1 February. These were adopted after some small grammatical changes.

Deliberations on Communal Property Associations (CPA) Bill

Clause 2

The Chairperson asked the Committee for comments on Clause 2 of the CPA Bill.

Mr P Mnguni (ANC) said that he was not sure where the Committee had ended with the engagements concerning the use of the word “community”. He did not want to reopen that debate, but asked how the Committee had dealt with the word “community” in the clause.

Mr T Walters (DA) said that he agreed with Mr Mnguni on the word “community,” but that the matter needed to be considered at some other time.

Mr Mnguni supported Mr Walters’ suggestion.

The Chairperson said the Parliamentary legal team and the Department would look into this matter.

Mr Filtane repeated that a recap session was needed. The document which was in circulation did not help much. It had not recorded sufficiently where the matter had been left in the previous meeting.

The Chairperson said that it appeared in the minutes, but not in the recap document. The recap document needed to record the outstanding issues effectively.

Mr Mnguni agreed with Mr Filtane. This was a great frustration. He added that “labour tenants” was also an issue in the clause. There was no need to refer to “labour tenants” in the CPA. There was also not a need to state where they came from. The term labour tenants needed to be amended.

The Chairperson noted Mr Mnguni’s concerns. The definition of “community” and “labour tenants” would also be looked at.

The Committee agreed on Clause 2 (a), (b), (c), (d), (e) and (f).

Ms N Magadla (ANC) asked why the word “group” was being used in the clause, instead of “community.”

The Chairperson said that the definition of community would to be dealt with.

Mr Walters said that with the regards to clause 2 (f), in comparison to (d), the definition of property seemed not to be consistent. Legal advice was needed on this. Could it cause inconsistency with other legislation?

Ms S Mbabama (DA) said that consistency was needed throughout the CPA Amendment Bill.

The Chairperson agreed.

Mr Filtane said that there were two definitions of community. There was a generic definition and a technical community. In this clause, the generic community was being looked at through the lens of the technical community.

The Chairperson agreed that the definition of community was in the context of the CPA. What Mr Filtane had raised made sense. Community was spoken of in the sense of a group of people acquiring land.

Mr Nathi Mjenzane, Parliamentary Legal Adviser, said that the legal advisors of the Committee had been asked and had given an option to the Committee on the use of the word community. Further advice would be provided on the use of the word community.

Ms Mbabama said she was not comfortable with the outcome.

The Chairperson asked the Committee for inputs concerning Clause 2(g) and (h).

Mr Filtane said that the word “association” needed to start with a capital A.

Mr Walters said that under 2(g), there was an issue with the term “property” which needed further clarity.

Mr Mnguni said agreed with Mr Walters.

The Chairperson agreed, and Committee agreed on 2(h).

Adv Sello Ramasala, Legislation Specialist: Department of Rural Development and Land Reform said that clauses 2 (d), (e), (f) and (g), were the paragraphs which the Minister had approved. He did not see the need to use “historically disadvantaged people” in the CPA, as this was going to become outdated.

Mr Mnguni said he did not know about the politics of disadvantaged people. There was no equity in society, and this could last for the next 20 to 30 years.

Mr Filtane said that there was no definition of “public interest,” and asked if the meaning of public interest was the same as that contemplated in the constitution. He said that there was a common understanding of what public interest meant.

The Chairperson said the CPA stood with other legislation. Public interest was spoken of in the Expropriation Act.

Mr Walters said that the Expropriation Act needed to be defined as a public purpose. He stood with the proposal that “public interest” needed to be phrased with the constitution in mind. He held no strong feelings with regard to the term “disadvantaged community.” This could be included in issues of public interest. Legal advice was needed to help in this regard.

Adv Ramasala said that the public interest was not the kind referred to in section 55 of the constitution. The phrase public interest was read in the context of a particular community or CPA -- in other words, those who would be affected if a CPA was approved.

Mr Filtane said that this was less of a technical legal problem, and more of a political problem. He disagreed with the notion that it be left with the legal advisors to decide.

The Chairperson said that the legal advisors would not decide, as this was the Committee’s responsibility.

Ms Mbabama said a definition of public interest was needed.

A legal representative of the Committee said the phrase “public interest” was in the principal act.

Clause 3

The Chairperson asked for inputs concerning clause 3 (a).

Mr Walters said that 3(a) sounded automatic. The clause provided for beneficiaries to use other business models simultaneously if they wanted to.

Adv Ramasala said that if a CPA wanted to operate as a company, there was different legal regime applicable which would manage that.

Mr Walters said he was happy with that. This debate was situated in the broader debate of how land reform should be driven.

Ms Mbabama said that she did not understand this. Did this mean that a community could form another entity under the CPA and it would be accepted?

The Chairperson answered yes, and asked the Committee for further inputs.

The Committee agreed upon 3(a) and (b).

Mr Filtane said that there was a problem with the use of the word “similar.”  Were trusts considered under “similar.”

Adv Ramasala said similar was defined and included trusts.

Mr Filtane said that the Committee had learnt from public hearings and the Department that there were some problems with trusts. It was very difficult for the Department to intervene with trusts. He suggested that trusts be excluded.

Mr Walters said that he did not support legislation that forced people into any type of business model. It was not right for people entitled to land to have preconditions on the types of business models they could use on that land.

Mr Filtane said that one needed to recognise the difficulties which communities had with regard to trusts. He kept his original position, and argued that trusts should be not stretched into the CPA Amendment Bill.

Mr Walters said this discussion needed proper conversations with regard to improper land reform. One was dealing with a piece of regulation in a bigger part of the picture.

Mr Mnguni agreed with the principle argued by Mr Filtane on trusts. Trusts were very difficult to oversee. He understood what Mr Walters was saying, as he was equally frustrated with trusts.

The Committee agreed on sections 5, 6 and 8.

Mr Filtane said that his concern with 2A was the word “before” at the start, and asked if people would sit down beforehand with associations and draw up plans.

Ms Magadla asked if there was still any property under the Act of 1937.

Adv Ramasala said that the Department, not the community, ensured plans were designed and approved,. The Act of 1937 had been amended many times.

The Chairperson said that drawing up plans would be the responsibility of the Department. Some communities had the capacity to do so. She asked if the phrasing would not lead to possible delays.

Mr Walters said that the consultative process with the beneficiaries was an issue. An interactive process was needed. The process was not specified. What did the “Minister format for general plan” in 2A (2)(e) mean? Unregistered rights were a problem. It could happen that land term beneficiaries could get land, and unregistered rights could come up.

Mr Filtane asked why further preconditions were added after qualifying the community. There was a lot of social facilitation needed to help communities. The word “before” needed to be taken away.

Mr Mnguni said that Mr Filtane had made a point. The word “before” needed to disappear as fast as the speed of light. The matter needed to be reverted back to the drafting team.

Mr Walters agreed that one could not be a precondition for another. He asked when the consultation with the beneficiaries themselves was.

Adv Ramasala said that the issue with the word “before” was in the context of issues of capacity. It was advisable not to make it a precondition, but it needed to happen sometime. Consultation was not factored in and needed to be. With regard to more affluent communities drafting plans, this needed to be a consideration. With regard to the register of rights, this was taken care of under item 7, which spoke of rights. Rights needed to be in the constitution of the CPAs.

Ms Mbabama asked why the word “may” in 2A (3) was used. Should it not be changed to “shall”?

Adv Ramasala said that when legislation was being drafted, the Minister’s discretion was taken into consideration. The use of the word “must” would need further legislation in term of the timeframes it needed to be completed by.

Mr Filtane asked for clarity on 2C (5). What status would be held by the person who the Director General appointed to the Department to perform the duties in the office of the Registrar or the Deputy Registrar?

The Chairperson asked for the meaning of “regional office”.

Mr Walters asked if 2C(2) did not fit in the functions of the Registrar. It seemed to him that it did. This needed to be reformulated accordingly.

Ms Magadla agreed with Mr Walters. There needed to be greater clarity with the use of the words “shall, will and must”.

Mr A Madella (ANC) said he felt these issues belonged in the regulations. How did one distinguish the Deputy Registrar in the office of the Registrar, from a Deputy Registrar appointed to perform the functions of the Registrar in the regional offices? This section needed serious consideration.

Adv Ramasala said that when they drafted the Bill, they had regional offices in mind. This was influenced by many factors, one of them being availability of resources. The Committee would make the final call with regards to the use of use of either “must” or “may”. The issue of timeframes would need to be taken into consideration if the term “must” was used, however.

Mr K Robertson (DA) said that there was no mention of verified beneficiaries in specific CPA’s. Was the list of beneficiaries open to the public, or to that specific CPA? There was a lot of jumping around concerning who were beneficiaries or not.

Adv Ramasala said that the CPA constitution provided for the identity of the beneficiaries.

Ms Mbabama said that this was important. She agreed with Mr Walters that 2C needed to go under the functions of the Registrar. Did “regional office” mean “provinces”? Further clarity was needed with regard to the term “area”.

Mr Mnguni said that Adv Ramasala had not given sufficient consideration to the experience of regional offices being in different provinces. Some municipalities which he had worked in were frustrated when regional offices were in other towns. It needed to be mandatory that offices were closer to CPA’s.

A Parliamentary legal representative said that the CPA Amendment act had to do with compliance. In public hearings, there were real challenges identified, such as conflict.

The Chairperson said that these issues would be looked at.

Ms Mbabama said that "must" would have budget considerations.

Mr Mnguni said the Committee was not working to represent a Department that had constraints. A provincial office was the bare minimum. One could not concede the point of provincial offices.

Mr Gugile Nkwinti, Minister of Rural Development and Land Reform, agreed with Mr Mnguni.

Mr Nchabeleng said that what made the Committee’s work difficult was that it was making laws that needed to be implemented by people on the ground. The Department did not have the strength to implement some of the laws that were being made. Time was needed to evaluate the Department’s capacities.

Mr Filtane said that at the end of the process of legislation came the question of funding and implementation, which the Department needed to respond to. This at times became a blockage at the end. One needed to be careful when one used either “must, shall or may” because of budgetary considerations.

Mr Mnguni said that with regard to resources, R19.8 million was available for the CPAs. The Committee did not have to worry about funding and budgeting. He did not understand where the notion of a lack of funds came from, and restated the need for regional offices at the provincial level.

The Chairperson proposed that “may” should be replaced with “must” with regard to 2C(2). The Committee agreed.

The Committee agreed upon sections 2D from A to L, with minor drafting corrections.

Clause 4

The Chairperson asked for comments on the amendments to Clause 4

Mr Filtane said the Committee always complained that some officials of the Department did not perform their functions. There was a provision in Clause 4 that exempted officials from liability. He could not agree with a clause which took away liability.

Adv Ramasala said that the provision was intended to indemnify officials against the ordinary performance of their duties in good faith. If an act was committed in bad faith, then there was no legal protection provided.

Mr Mnguni asked what problems were experienced by provisional CPAs, and what the basic modus operandi of these people was.

Ms Magadla wanted to check on the timeframes concerning the drafting of amendment 5. If timeframes were not there, officials took a long time.

Adv Ramasala said that the main challenge was that the CPA’s were difficult to manage. Some entities served no particular purpose. With regard to timeframes, the writing process needed to be inclusive. The drafting of bills became a tedious process at times. Drafts sometimes did not comply with legislation. In such circumstances, it became difficult for Department to qualify. It was difficult to have a timeframe because of the process.

An official of the Department said that provisional CPAs tended to be understood as permanent, and people usually continued as if they were proper CPAs. A provisional CPA was a form of preparatory work. Doing away with provisional CPAs was based on the recognition that people tended to overstay their time. There was a draft pro forma for a CPA available in regulations.

Mr Ramasala said the issue of timeframes needed to be looked at with regard to the two levels. The first was the community draft level, and the second was at registration and qualifications.

Ms Mbabama supported Ms Magadla’s concern. She added that one needed to be careful when trying to regulate operational issues.

Mr Madella (ANC) said that this had to do with the capacity and ability of Department to its job.

Mr Mnguni said that he agreed with the Department’s legal officer. This was not a legal issue but a policy issue. People on the ground needed institutional support. This related to a business plan, social facilitation and the drafting of a CPA constitution. The matter could be handled at a later stage.

Clauses 5 and 6

The Committee agreed upon clauses 5 and 6.

Clause 7

Mr Filtane said that he had an issue with “notify” in clause 7(a). He suggested this be qualified with a phrase such as “reasonable notice”.

The Chairperson said that it was not the responsibility of the Registrar to go through all CPAs. There were people delegated to perform these roles.

Ms Mbabama said that this could be specified in other documents.

Mr Nchabeleng said that there would not be a problem with capacity or resources.

Mr Madella said that it was problematic legislating timeframes. The Department could be taken to court for violating the Act. There was CPAs which raised concerns. The 60% quorum needed to remain with regard to the disposal of assets.

Mr Mnguni said that there was a loophole between “individuals” and “households”. A CPA needed to organise its members. The composition of the CPA quorum needed to be clear. The CPA constitution was the supreme law of that body.

Mr Robertson agreed with Mr Mnguni. “Individuals”, “families” and “household” could be substituted with the phrase “verified individuals”.

Adv Ramasala said that this referred to decision making, which item 8 spoke about. The beneficiaries needed to decide who would be making the decisions.

A legal representative of the Committee said that individuals, families and households in 7(a) could be substituted with “verified members” or “beneficiaries”.

Mr Robertson said that based on what Adv Ramasala was saying, a quorum could actually mean that decisions could be made by 30% of beneficiaries. If someone was a beneficiary, they had a right to vote.

Mr Filtane said that members of a CPA needed to be defined.

Mr Madella said that the CPA constitution would define this.

Mr Mnguni said that the whole clause needed to be reformulated. Item 8 needed to be changed also.

Mr Robertson said he had an issue with household membership. Not all family members agreed with one another on how to use the CPA. It made sense to get 60% of verified member there. Item 8 needed to be changed again.

Mr Mnguni agreed with Mr Robertson. Members of families did disagree. This needed to be democratic and as such, everyone needed to have a vote.

The Chairperson suggested the use of the term “verified members” instead of individuals, families or households in 7(a). The Committee agreed.

Ms Mbabama asked that the pro forma CPS document be seen by the Committee.

Mr Mnguni seconded her.

Mr Filtane said that the phrase “prescribed information” needed to be defined in Clauses 7 and 8.

The Chairperson said it was not the Registrar per se, but the Office of the Registrar.

Adv Ramasala said that “additional information” meant accompanying the registration form during registration. “Prescribed” meant as provided for in the register.

Mr Filtane said that he was comfortable with that.

Ms Mbabama asked if the wording throughout the CPA Bill could be made easier.

The Chairperson said that the Minister was in charge of this.

Ms Mbabama was worried that if the ordinary Members had to read the Bill, it would be hard for them to understand it.

The Chairperson said that during the training process, information needed to be distributed to beneficiaries to assist them in understanding the CPA Bill.

Clause 8

Mr Filtane said in Clause 8(c), he was not comfortable with the word “may”. The individual officer needed to assist communities.

The Committee agreed, and changed the word “may” to “must”.

The meeting was adjourned.


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