The Portfolio Committee on Rural Development and Land Reform received a briefing from Dr Aninka Claassens, a member of the high level panel that had been led by former president Kgalema Motlanthe, regarding the findings and recommendations of the panel.
Dr Claassens said there were more than 7 000 unsettled claims and more than 19 000 unfinalised ‘old order’ claims. At the current rate of finalising 560 claims a year, it would take at least 35 years to finalise the old order claims. New order claims that had already been lodged after 2014 would take 143 years to settle, and if land claims were reopened and the expected 397 000 claims were lodged, it would take 709 years to complete land restitution.
Due to the limited capacity of the Land Claims Commission, the panel was recommending that the 1913 cutoff for claims was maintained.
Additionally, it had been the finding of the Commission that claims made for the same land had often been lumped together, triggering ethnic and tribal conflict within those areas which had further inhibited agricultural productivity. The panel supported the subdivision of these large shared land allocations, in addition to making the Land Claims Commission independent from the government.
Due to time constraints, Members were limited to asking only clarifying questions of Dr Claassens. Members shared their concern over the failures of Section 25 of the Constitution, questioning whether it should be amended, as was currently being debated.
According to Dr Claassens, the former Minister was in breach of his legal obligations, and his failure to uphold and enforce the Interim Protection of Informal Land Rights Act (IPILRA) had led to systematic dispossession. The opinion of the Committee on this matter was highly split, as some Members defended the Minister and others claimed it was he who was behind the view that black people were not able to farm.
Members appeared far from achieving a consensus on how to approach this complicated issue, which had plagued the nation since apartheid. However, the findings of the high level panel had now been presented and a report containing its recommendations would be digested by Parliament, piece by piece.
Dr Aninka Claassens, Director: Land and Accountability Research Centre, University of Cape Town, and a member of the high level panel that was led by former president Kgalema Motlanthe, commented that she was aware of the irony of her being white and talking about land. It should not go without comment, but she was only one member of the panel and the recommendations followed the views of the entire panel, not just her own.
How could Parliament exercise oversight? The panel noted the lack of policy coherence in relation to land. For example, there had been no White Papers since 1997. It had become incredibly difficult for Members of Parliament to measure the content of bills against agreed policy objectives. The problem was there were constant ad hoc policy changes, some not even made public yet, and resources were spent on them as they were implemented. In the public hearings the panel held, people kept complaining that the goal posts were shifting constantly. The budget was being spent on issues not approved by the Cabinet or mandated by legislation.
Dr Claassens said that unless there was policy coherence, there was a real danger of getting lost in the detail, especially if the laws were not sequenced correctly. An example of difficulty Parliament faced in relation to how bills were sequenced was the current Communal Property Association (CPA) amendment bill, which was being processed, although the Communal Land Tenure bill had not yet been tabled.
The Land Framework Bill sought to provide coherence between three legs of land reform -- redistribution, restitution and tenure. Redistribution and restitution were meant to be discrete programmes, whereas tenure was cross-cutting. There were various types of tenure insecurity, involving farm workers, communal areas, and those living in shacks around the city. It was impossible to have a one size fits all solution to the various tenure problems. Tenure also related to the form of rights (tenure security) that people would get through restitution and redistribution.
In regard to the delivery failures of restitution and redistribution, people were complaining of being lumped together by the hundreds on one farm where they were meant to be farming. Strategic partners that were imposed on them kept them out of the decision-making processes. Other complaints that were heard were that there were long delays in acquiring land, with some claims prioritised at the expense of others.
The failures in tenure reform were different from the failures in restitution and redistribution. Black people were being dispossessed of communal land by mining and development, and they were not consulted for their consent nor were they being compensated.
There was overlap between delivery failures and tenure issues. The few people that managed to obtain redistribution of land remained tenants of the state with conditional use until they had proven productivity at farming, but this made it impossible. How could one farm land productively when there were 300 other people sharing a former white farm? It was not a matter of people being bad farmers -- it was the model that was bad.
The pace of land redistribution had slowed down dramatically, with 2015/16 at the lowest level since 2000. In 2016/17 no hectares had been transferred.
Gender was emphasised in all policies, but women represented only 23% of the beneficiaries. There were no adequate criteria to measure who was actually getting the land.
The failures in agricultural production were blamed on the people, with claims that it was the fighting among one another and a lack of skills that was causing their poor productivity. However, the business plans were all based on the model of large commercial agriculture. With 300 families substituting the previous white farmer, there was a fundamental misfit between the vision of agriculture being pursued and the methods being used to pursue it.
The people were very angry towards the strategic partners, and the lack of access to land, budgets and agency. They felt like they were being treated the same way as apartheid. Post transfer support and coordination was a major problem.
Agriparks was getting the highest portion of the land reform budget for 2016/17. There was no law defining who should get the land, how it should be used, what type of farming, how many settlements, and the rights of beneficiaries. This lack of legal criteria led to elite capture and a lack of transparency and accountability. The failure of redistribution led to the restitution program being swamped by claimants who did not qualify but saw it as a way to get land. People had given up on redistribution, so they put in the restitution claims which were limited to a court-based process, where people could prove specific historic losses.
The panel put a lot of work into drafting the proposed National Land Reform Framework bill to show what could be done to address these problems. It sought to define what ‘equitable access’ to land meant and provide criteria to measure progress. It set out beneficiary selection criteria and clear institutional arrangements, particularly at the district level. People in the district would be able to provide direction as to who needed what land, and what land was available. The bill also proposed a land rights protector to serve as an alternative dispute resolution to court.
Dr Claassens drew attention to the sections in the constitution which provided protection for tenure:
Section 25(6) - a person or community whose tenure of land was legally insecure as a result of past racially discriminatory laws or practices was entitled, to the extent provided by an act of Parliament, either to tenure which was legally secure, or comparable redress;
Section 26 (9) - Parliament must pass legislation to give effect to this provision.
Parliament was in breach of both these sections.
Apartheid denied black people rights in land not only via dispossession, but also by imposing a discriminatory tenure system that created a second-class set of off-register and largely informal forms of land rights. There was a fundamental correlation between vulnerable forms of tenure and the geography of spatial inequality and poverty that remained entrenched.
Due to section 25(6), Parliament had passed the Interim Protection of Informal Land Rights Act (IPILRA) in 1996 as a holding mechanism until a comprehensive law could be enacted to secure vulnerable tenure rights, but a law had yet to be enacted.
The failure to uphold and enforce IPILRA had led to systematic dispossession. The Minister was in breach of fiduciary and legal obligations.
The panel recommended that IPILRA be enforced and strengthened. There was a need to assert and clarify the strength of customary land rights and to ensure that the Mineral and Petroleum Resources Development Act (MPRDA) and the Traditional Leaders Governance Framework Act (TLGFA) were subject to IPILRA.
In order to amend IPILRA, the panel recommended that it first be made permanent. Community override, in relation to occupation and use, should be removed to require full compensation. Common property access rights were crucial, especially in relation to mining. The community must be defined by those affected by the decisions, not the overarching tribes.
The other suggestion was to change beneficial occupation rights to three years.
It was the unanimous decision of panel to recommend that the Ingonyama Trust Act of 1994 be repealed or amended. Customary ownership had been downgraded to tenancy under this Act. Leases were not being understood, and people were being taken advantage of.
When it came to ownership, there was a Western system of ownership which was exclusive -- it defined the owner and excluded all others. The customary system of ownership was inclusive, as it allowed overlapping rights. South Africa had had a system of customary rights before western influence. When it came to customary law, however, was ownership according to families or traditional leaders? This had been long disputed.
In legal terms, most of the land in the formal homeland was owned by the state as a trustee, but instead of seeing themselves as a trustee, they saw themselves as the outright owner in a European sense.
Restitution of Land Rights and CPAs
There were more than 7 000 unsettled claims and more than 19 000 unfinalised ‘old order’ claims. At the current rate of finalising 560 claims a year, it would take at least 35 years to finalise the old order claims. New order claims that had already been lodged after 2014 would take 143 years to settle, and if land claims were reopened and the expected 397 000 claims were lodged, it would take 709 years to complete land restitution.
It was alarming that the Department of Monitoring and Evaluation (DPME) and the land claims court were not set up with the capacity to handle the number of claims. They had a lack of historical and legal training, a lack of records, and claim forms were being lost.
Where there were disputes between claimants, the Commission had amalgamated these different groups into one group that would share the land. However, they hated each other. Locking claimants into dysfunctional groups had created ethnic and tribal tensions. There were very poor agricultural outcomes with the lumping of different groups of people together. These problems had been exacerbated by the 2014 amendment act. Valid claims were being held back by counterclaims made by the traditional leader elites.
Recommendations from the panel were:
- Backlogged claims must be resolved before other claims allowed;
- 1913 cut off date retained;
- Land Claims Commission must be made independent of government;
- The Land Claims court must be stabilized -- more judges;
- Panel to review merits of existing claims -- many do not qualify;
- Break up consolidated mega ‘communities’ and sub-divide the land;
- Bring back judicial oversight before claims can be approved;
- Ensure that claimants are treated equally and budget fairly allocated.
The panel had provided an indicative draft Judicial Amendment Bill and a draft Restitution Amendment Bill, with the key issue being that sufficient budget was made available to ensure that restitution was available to all valid claimants.
A total of eight million hectares had been transferred through land reform, most of which was owned by 3 000 trusts and CPAs. The panel recommended that a proper budget be dedicated to CPAs and that all trusts were converted to CPAs. She stressed that there must be strong family and individual recorded land rights within CPAs that were enforceable against committees. Regulations were needed to enable communities to determine land use and user right allocations.
It was urgent that dysfunctional CPAs that had resulted from the lumping together of competing claimants were broken up and sub-divided.
Mr T Walters (DA) declared that this presentation pulled many strings together, as it provided a historic context and addressed the issue of rights, citizens’ rights specifically, and how they needed to be extended in the land space. He supported what had been said. The notion of recording and institutionalising the rights of the people was a very fundamental concept. The various bills that had been proposed sought to pull things back together. In terms of the way legislation had failed to comply with the regional constitutional duty, could that issue be expanded on? He raised another question of clarity regarding the failing institutional framework, as the presentation had only touched on what was considered a successful business model. What would be regarded as the key success factors in an agricultural business venture?
Mr K Robertson (DA) mentioned that the presentation had highlighted issues of corruption, lack of training, and the reducing of budgets specifically geared for land allocation, which was highly concerning. He would like to know more about that. The presentation kept referring to Section 25 of the Constitution, which was currently being debated as to whether it should be amended or not. Given these inherent failures, did the panel feel that Section 25 was an impediment resulting in the slow allocation of land to black South Africans? Was it an impediment to black South African land rights?
The matter of MalaMala had also been raised. This had been discussed last year, and he had been led to believe that beneficiaries were not being verified correctly, However, the panel report indicated that both the Commission and other stakeholders felt the climate had not improved. He requested clarity on this issue, as it was R1.1 billion of taxpayers’ money that seemed to be going in a direction it should not have been going. The panel’s assessment of CPAs was spot on. There must be sub-divisions so that those who could farm were not brought down by those who were still heavily reliant on the state.
Mr N Matiase (EFF) commented that the basis of the dispute was between western and customary land ownership systems. The hegemony of the western system needed to be dealt with. The government was far from achieving adequate land distribution. The customary system of land ownership had no empirical evidence because it had been destroyed during colonial control. What was the role of customary ownership in this country now? Land over the past 400 years had been distributed to the political elite. How many of this Committee’s former ministers had used their power to obtain land? Many were guilty of this. Land must be restored and placed under state ownership, just as the mine and mineral resources were placed under state ownership on behalf of all people. Capitalist ownership gave rise to the concept of private ownership of land, which was discriminatory and exploitative.
Ms T Mbabama (DA) questioned what was meant by ‘property rights?’ Where it had been mentioned that the previous Minister had been in breach of legal obligations, could this be explained further? The previous Minister was on record as saying that people were not ready to own land. Although it was not said, it was implied that black people could not farm. Was that the impression the high level panel got when going to the various provinces, that people were not ready to own land and that blacks could not farm?
Mr M Filtane (UDM) directed his questions to the Department, and asked if it was their evidence that redistribution had been disproportionate? This was a crucial matter when came to policy implementation. Why had the Department had been lacking in developing policy for so long? Dealing with post settlements, what was the reason for the failure of CPAs? Was the IPILRA act constitutionally binding? Why was the Minister not implementing the IPILRA act? Why was the 1913 cut off important?
The Chairperson clarified that the Department was here today to listen and not to participate. She requested to Members ask their clarifying questions today.
Ms N Magadla (ANC) said that if the Minister had said that blacks could not farm, it was completely unacceptable. There was an issue of title deeds and selection criteria.
Mr A Madella (ANC) acknowledged that this topic required extensive discussion, and since that could not happen today, a timeframe needed to be established. There was no way he could imagine the Minister making a statement that black people were incapable of farming. What must be acknowledged was that the white farmer’s success was on the ‘carcass’ of black people. Their success had been supported by the government. This presumption, that when one received land then one must farm, was wrong -- one could do anything with it. He expressed his concern towards the leanings of the high level panel on the expiration of rights. He disagreed that land should be placed under state ownership.
Mr M Nchabeleng (DA) agreed with Mr Madella that it was unlike the Minister to say such a thing about black people not being ready to own land.
Mr Walters raised a point of order, stating that the Minister’s stance could be debated right now.
The Chairperson asked Mr Walters to be calm and to allow others to speak.
Mr Nchabeleng continued by asking if the state taking over the land had been considered? However, the land should belong to those that lived on it and worked it.
Mr P Mnguni (ANC) acknowledged how Dr Claassens had begun by saying she was white, as this statement was very significant. He thanked the white people who were standing on the right side of history. He was very hot under the collar regarding the stalling of the restitution amendment. The presentation had mentioned that there had been no White Papers since 1997, but there had been a Green Paper dated 2011. He asked Dr Claassens if she had had a chance to sit with the Department’s members to hear them out, before creating the presentation? Why were black people considered capable of only small time farming and not big business farming? The viewpoints regarding black abilities must change. There was going to be a Parliamentary process to look into the holistic work of the high level panel. The report process would be unfolded by Parliament. It should even be a Parliament-wide process.
The Chairperson asked Dr Claassens what her take on the CPA amendment was. Would this solve the problems highlighted in the presentation? What was the purpose of the high level panel now?
Dr Claassens’ response
Dr Claassens responded that she was aware that what had been said was highly critical on several fronts.
Regarding the first question from Mr Walters, which had asked for clarification on which legislation had failed to abide by constitution, she said it was section 25.5. There was a gap in the laws in place between tenure and restitution. There needed to be a law to give teeth to 25.5. It was the failure of that part of the paragraph that had backfired on the rest of it. The Land Framework Act sought to propose a way to fix that gap. However, this was simply a recommendation. As the chairperson had stated, the high level panel no longer existed. Everything that was done had been presented before Parliament, and the recommendations made to Parliament may be taken forward as seen fit. The big gap where Parliament was most vulnerable was 25.6 and 25.9. Section 25.9 was the biggest danger to Parliament currently.
Regarding the successful business model, there was a paper on the website that documented different approaches to agricultural production. It was important to develop a range of models for people, from high scale farmers to those who had been living on land and farming on a small scale, unable to grow their business because something had been stopping then. The models being used were based on how white farmers used to farm, but the country no longer had the subsidies to support that.
To answer the question on startup businesses, Dr Claassens said that there was a chapter in the report on land, but there was also a joint chapter on spacial inequality. This was a massive issue that was linked to people not having recorded rights, and not having easily recognised identities in relation to start-up businesses. Some individuals even struggled to vote because they needed to have an address to vote. Spacial inequality was the structural outcome of the laws that were originally designed to exclude people. There needed to be structural changes to break the chain handed down from apartheid.
The panel believed that one of the dangers of amending Section 25 was that the positive land rights that were included to counter the property rights, would be lost. The debate on expropriation had opened the debate on legitimacy and the hypocrisy of people. Society had sat by while mining companies had failed to obtain consent and failed to compensate people. All property rights should be maintained, not just property deeds.
The MalaMala clan issue was very important, because it goes went to the question of who restitution meant to be for? It was meant for people who could prove they had been dispossessed at a certain time, but the focus had shifted to tribal groups rather than who at that time had been occupying the land. There really were fundamental questions about subsuming the kind of land rights practiced under tribal lands.
She found the question of the different systems of ownership the most exciting part of the panel. It was remarkable that customary rights had survived, and they provided a powerful starting point to change the debate on ownership in South Africa.
Dr Claassens expressed her concern regarding the notion of state ownership solving the problem. It had been a disaster for rural people. A level of state regulation was incredibly important, but if there were not property rights vested in individuals, there would be further exploitation.
The heart of the matter was property rights. Title deeds were not needed if property rights were set out in statute, outlining what could be done with the land. Property rights were a much wider concept than a title deed. There was no contradiction with a state trustee giving away some of its powers to those with property rights.
Dr Claassens said she stood by her statement on the Minister. The Minister was treating the land as though he owned it, while he was only a trustee and the people did have rights. The policy showed his standpoint
Land disputes were leading people to just want money instead of land, because the process was so bad. The 1913 cutoff had been preserved because restoration was designed for people that could prove their land rights, and the panel did not believe that this would really be possible before 1913. At that point it would become more a tribal claim. The restoration process was already overwhelmed, as it was.
The panel was strongly opposed to the title deeds system. It was being broken down, and there was only one owner with this system. Title deeds almost always discriminated against women. She believed the process should go through land records.
The Green Paper of 2011 had not been the same as a White Paper. The Committee was at a great disadvantage in having to deal with matters on an ad hoc basis without seeing the big picture. It was a constructual constraint.
The meeting was adjourned.
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