CPA Amendment Bill: progress report on Northern Cape & KZN concerns; with Minister and Deputy Minister

Rural Development and Land Reform

06 June 2018
Chairperson: Ms P Ngwenya-Mabila (ANC)
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Meeting Summary

Most political principals and the majority of Members of Executive Councils are beneficiaries of the Communal Property Associations.

This revelation came during the debate when the Portfolio Committee on Rural Development and Land Reform was questioning the Northern Cape on concerns raised by communities during public hearings on the Communal Property Association Amendment Bill.

Because the political heads were coming from these communities, it was reported this was making it difficult for the Department to engage with communities as the concerned groups would indicate the Department was pushing for agenda XYZ because of the status of certain individuals in government. Unfortunately, officials had to do the work of the Department.

The Committee further registered disappointment from the Department of Rural Development and Land Reform and its KwaZulu-Natal provincial department, and Chief Land Claims Commissioner for tabling incomplete documents before the Committee on the day of the presentation.

The Committee decided not to allow the Department to present their documents. It reasoned that for it to apply its mind in order to find solutions to the challenges that Communal Property Associations face, it needs time to go through each issue raised, something which it could not do when documents are submitted late. The Committee urged the Department to come up with plans of when specific issues raised during the public hearing would be dealt with.

Northern Cape was the only department which was allowed to present because its documents were delivered to the Committee in time. The department indicated concerns were raised only on eight Communal Property Associations. It further informed the Committee challenges were on Associations that were registered through the restitution programme. Challenges encountered surfaced in different forms. For example, first, through the restoration of land where the usage of the farm in question was never agreed to by concerned parties from the beginning, no proper hand-over of the restored land, conflicts between the chiefs and chairpersons of the Communal Property Association, etc. Second, through land use where the Department of Mineral Resources has issued Associations with mineral rights without proper consultations that meet the requirements of section 12 of the CPA Act. And third, where membership is determined by being 18 years old instead of following section 2(4) of the Restitution Act. 

The Committee also deliberated on the delays in the implementation of the Spatial Planning Land Use Management Act. The Department informed the Committee there were never delays in the implementation of that Act and 80% of the work has been done already although its reassignment has been put on hold until further notice. Members of the opposition stated the issue of Spatial Planning Land Use Management Act is beyond the Acting Director-General because since 2015 the executive of the country has been undecided about the department to be responsible for the Act’s custody and the bone of contention was that traditional leaders did not have a decisive action on its implementation but were only being consulted.

Members wanted to know from the Northern Cape what makes it optimistic that the Gong-Gong settlement agreement would be signed by 31 July 2018; enquired why the people who received financial compensation in Babatas were now claiming for land and if they were doing so because they did not understand the terms stated upfront; asked how far the Northern Cape was regarding the Batlhaping issue where the chief refused verification to be done by the Department and rather opted for members of the Communal Property Association to verify themselves; wanted to find out what assistance has been given to the Pniel Communal Property Association regarding water and electricity rights because it is an ideal Communal Property Association; and wanted to understand if there were any officials of the Department who had a direct interest in these Associations because it looks as if the Associations are trying to defend themselves from the Department.

Meeting report

Northern Cape Presentation
Mr Kgotso Moeketsi, Chief Director for Provincial Shared Services Centre (PSSC): Department of Rural Development and Land Reform (DRDLR) (Northern Cape) briefed the Committee on Communal Property Associations (CPAs) without title deeds. There were only eight affected CPAs: Pniel, Da Mouton, Sydney on Vaal, Gong-Gong, Meyers and Grootfontein, Babatas, Xhu & Khwe, Batlhaping Ba- Ga Phetlhu.

Pniel CPA
The matter of concern here was the transfer of the title deeds, payment of the lease money to the CPA, and the renewal of the lease agreements. The matter is in court pending submission of the referee’s report. The referee failed to lodge his report with the court by 30 April 2018 as per the letter of demand sent to him. The term of CPA executive would be terminated once the report of the referee is lodged with the court.
Panellist via Land Rights Management Facility (LRMF) (Mr Terence Fife) was appointed to regularise the CPA. The referee’s report is partially completed. The report requires both legal and financial analyses of the Joint Venture. The referee has completed the legal part and requires the financial part so that the report could be submitted. An accountant was appointed in January 2018 but the CPA was not cooperating.
Officials from the DRDLR were attacked at the farm in October 2017 when they went to do inspection in order to start the lease agreements. As a result, the lease agreements could not be completed.  Criminal cases were opened on 20 April 2018. A meeting with the CPA and their legal counsel was held in the light of another recent court order granted and its effects on the Pniel CPA.
The Regional Land Claims Commissioner of the Northern Cape instructed the state attorney to bring an application to court to force the referee to file his report. Registration and transfer of the property would commence after the court has adjudicated on the matter. The CPA regularisation is hindered by the court order of 2014.

Da Mouton
One title deed is in the name of the CPA. The outstanding portion is subject to subdivision of the land (Spatial Planning Land Use Management Act (SPLUMA) approval to be followed). The Regional Land Claims Commissioner of the Northern Cape appointed a service provider in January 2018 who indicated it would take eight months for the process (subdivision) to be concluded. The target date for transfer is 31 August 2018.

Sydney on Vaal
The CPA was non-compliant and was regularised. Conveyancers have been appointed and the transfer is expected to be finalised by 30 June 2018.

Issues raised relate to the transfer of the land to the CPA, release of information by the Regional Land Claims Commissioner in order to address the court application lodged by the claimants, and lack of support to the CPA. One portion has been transferred to the CPA as phase 1 settlement. Special general meetings were held and failed because the community did not agree on the list and cited settlement issues. The claimants were contesting the manner in which the claim was settled. That is why there was a delay in transferring the outstanding two portions and signing the settlement agreement. The Regional Land Claims Commissioner of the Northern Cape is scheduled to meet with the facilitator who conducted regularisation of the CPA to assist in mediating with the signing of the settlement agreement by 31 July 2018. The interim committee would meet with the panellist to agree on dates for Annual General Meetings (AGMs). The Provincial Shared Service Centres (PSSC) would continue to provide support to engage with the interim committee as part of providing support.

Meyers and Grootfontein CPA
he Regional Land Claims Commissioner of the Northern Cape is planning a handover celebration of the title deed before end of June 2018. The plan would be communicated to the claimants.

Members were not in favour of the CPA because the majority of the current executive committee were not members of the CPA. Only two members on the executive were valid members of the CPA. The main challenge is caused by members of the CPA who received financial compensation and they were returning for land compensation.
An AGM was arranged on 25 November 2017. The meeting was postponed because there was no quorum. A follow-up AGM was arranged on the 3 December 2017. The meeting was also postponed because the members could not form a quorum. On 20 January 2018, the meeting took place according to the provisions of the constitution which stated it could continue irrespective of numbers that attend the meeting. The elections of the CPA members took place.
The office is currently attending to post election complaints with visits to the villages for members’ resolutions taken on 6 and 7June 2018. A forensic investigation on the affairs of the CPA would be conducted.

Xhu and Khwe
The issue here relates to the traditional conflicts between the Xhu and Khwe communities. The former committee executives have established themselves as the new traditional leadership and this posed a challenge to the functioning of the CPA.
A panellist via LRMF (Ms Kehumile Ramotsoela) was appointed to regularise the CPA on 9 June 2017. A meeting with the executive was held on 7 July 2017 to introduce the panellist. An AGM took place on 21 November 2017. Members resolved that the CPA be split into two in order to reduce the dispute.
The mediator then joined the seven concerned groups to go through the CPA constitution in order to prepare for the separation of the two CPAs. The last meeting, which was scheduled for the 18 May 2018, was postponed due to the passing of the leader of Khwe community.

Batlhaping Ba- Ga Phetlhu
The legitimate members of the CPA were being refused to benefit from the land. The combination of the CPA and the traditional leadership was posing a challenge. On 13 September 2017, the panellist (Ms Puleng Llphuko) was introduced to the chief. An agreement was reached and permission was granted to conduct the verification. Then on 18 September 2017, a verification process for membership was held. An agreement was reached to continue with the AGM and hold elections with the names that were on the membership list.

Mr Moeketsi concluded that the province was facing challenges with the CPAs that were registered through the restitution programme. The CPAs were mainly characterised by the following challenges, amongst other things:

Settlement of the claim (outstanding land to be restored to the claimants or financial compensation not given or verification process not completed with regard to ODI)

Membership list (members having received finance whilst on the CPA membership register and this was causing dispute between those who received money and those that did not. Membership was determined by being 18 years old instead of following section 2(4) of the Restitution Act.
Restored land (restoration of land without proper hand-over to the CPA; the usage of the farm that has not been agreed to from the start; most of the usage on the land was no longer for commercial farming but for subsistence farming; two centres of power were leading to a clash between the CPA chairperson and traditional chief; and farm dwellers fighting with claimants)

Ownership rights (family farm claims restored as community settlement and family farm claims restored with farm dwellers)

Constitution (no proper dispute resolution mechanisms stated in the constitution)

Land use (DMR has issued CPAs with mineral rights without proper consultations that meet the requirements of section 12 of the CPA Act. Although efforts were being made to intervene into the activities of the CPA, shortage of staff within LTA were making it impossible to address challenges per CPA and this was compounded by the vastness of the province) 

Northern Cape Presentation

Mr M Filtane (UDM) remarked that what was presented before the Committee was a reflection of the lawlessness that was happening in the country. The Committee might not be able to provide sustainable solutions, especially when you came to Parliament thinking you were going to get solutions. He wanted to know what was delaying the implementation of SPLUMA.
He also asked what made the Northern Cape optimistic that the Gong-Gong settlement agreement would be signed by 31 July 2018.
He further wanted to find out why the people who received financial compensation in Babatas were now claiming for land and if they were doing so because they did not understand the terms stated upfront.

Mr Moeketsi explained that the Gong-Gong issue has been on their books for a very long time. The plan was to bring an independent mediator to come with a different angle to ensure the settlement agreement was finalised. On Babatas, an AGM was held on 20 June 2018. What they were experiencing now was a post-AGM conflict. A forensic investigation would take place soon.
Concerning SPLUMA, he elaborated they were administering the Act. The municipalities still had to appoint developmental tribunals, but the process would take plus minus eight months to complete.

Mr J Mnguni (ANC) enquired how far the Northern Cape was regarding the Batlhaping issue where the chief refused verification to be done by the Department and rather opted for members of the CPA to verify themselves.
He further wanted to know what assistance has been given to the Pniel CPA regarding water and electricity rights because it was an ideal CPA. It was the most successful story and an example of a pilot of how a CPA ought to be run.
 It appeared the provincial department was antagonising people by cutting their water and electricity rights.

Mr Moeketsi stated the Batlhaping chief insisted that no one must come to his land and talk to his people. As a result, no verification has been done. There were conflicting groups within the CPA. In order to enforce things like putting CPAs under administration because of non-compliance, they needed to get approval from the National Department first. He further indicated Pniel is one of the hotspot CPAs in the province, including Richtersveld.
There was a need to have an open discussion around the Pniel matter. The chairperson of the CPA was a friend of his, but when he joined the Department, they disagreed on many things. He pointed out the court intervention came as a result of some members of the CPA complaining they were not consulted on decisions taken by the executive. The court then appointed a referee to mediate between the fighting groups so that they come to an agreement. The referee has been meeting with the concerned groups which kept on taking each other to courts. The joint venture group that one group suggested should be halted, has not been stopped. There was also a youth group that was chased by the CPA chairman not to farm the land because the chairman wanted to use the land for mining. They were hoping the CPA would go to an AGM to sort out the matter and the Department has spoken to the state attorney on this issue. Water has been restored to the Pniel CPA.

Mr M Nchabeleng (ANC) commented that traditional leaders and ward councillors must not think they were entitled to the claims just because they helped people to fill in the claim forms which were distributed to traditional authorities and police stations when the restitution process was started.

The Chairperson wanted to understand if the Gong-Gong settlement agreement would be ready by 31 July seeing that the referee has been failing to file reports on time; and asked when the Grootfontein plan would be communicated to the claimants.

Ms Mangalane Du Toit, Chief Director for Land Restitution Support: Northern Cape Land Claims Commissioner, stated that the mayor is currently engaging with the Gong-Gong CPA regarding the hand-over. The provincial department received a directive from the National Department that the hand-over to the community be done towards the end of June 2018. The Grootfontein plan would be finalised by 31 August 2018 because the process usually takes 8 months.

Mr Filtane commented that SA is going through a process where the government helps people as groups, and officials have to do the same. It appeared the officials could not help people in a CPA as individuals. Deep thinking was needed to be applied on chieftainships intervening in CPAs and not allowing chairpersons of CPAs to hold AGMs.

Mr Mnguni remarked that one needed to be open-minded of the Pniel situation. There was a need to put the officials of the provincial department and conflicting groups under one roof to sort out the matter. Officials were finding it difficult to stay aloof of fighting groups. The Committee did not know there was a mining activity in Pniel. He hoped officials would not get involved in factional battles and they must only align themselves with public administration and procedures. He also pointed out that traditional leaders had no right to stifle the operations of a CPA. Where that surfaces, it should be condemned.

Mr Madella wanted to understand if there were any officials of the department who have got a direct interest in these CPAs because it looked as if the CPAs were trying to defend themselves from the department.

Mr Moeketsi pointed out that political principals and majority of MECs were beneficiaries of these CPAs because they come from these communities. When they engage with communities, the concerned groups would indicate that the department is pushing for agenda XYZ because of the status of certain individuals in the government.

The Chairperson asked if the people were lying.

Mr Moeketsi said it was difficult to say yes or no. Unfortunately, they have to do the work of the department.

Mr A Madella (ANC) stated it was not going to help to keep these challenges and not convey them to the DG, DDG, Deputy Minister and Minister because that would not help anybody.

Deputy Minister Mcebisi Skwatsha said items they discuss at MinMEC should come from the MEC and DDGs of provincial departments. But if these matters were not reported to them, they would do nothing. What they would do now as political heads of the Department was a top-down approach where they would give instructions to the provincial departments.

The Chairperson asked for clarity on the issue of deeds in the Gong-Gong CPA and why no grants were received. She wanted to understand who took who to court on the Pniel matter because Pniel was still state land, not a CPA; and wanted to find out of interventions in place because there are fights between the traditional leaders and CPAs and lack of training for CPA members. It appeared the officials were not responding to issues raised by Members.

Mr Moeketsi stated that the office of the DG was sitting with these complaints from communities. If some of these community members were complaining about them not doing their work, then it was because they were not responding the way they want them to.

Ms Du Toit elaborated the claimants were not benefiting from the mining activity because some of the land was identified not to be restorable. Then an alternative land was identified. But it later emerged that the unrestorable land has mining potential. Now people wanted this land with the mining potential. The Pniel CPA members approached the Commission, which then took the matter to court because there were many concerned groups that were mushrooming.

Mr Nchabeleng wanted to understand the reasons advanced for not giving people the unrestorable land because this meant somebody knew the land had mineral deposits. People were misled and the matter needed to be investigated.

Ms Nomfundo Ntloko-Gobodo, Chief Land Claims Commissioner, promised to send the Committee a detailed report on Gong-Gong. She said issues around mining should be discussed with the Department of Mineral Resources. People are being given land, but they are being told they do not own what is beneath the surface. That’s where the conflict started.

Mr Nchabeleng said he did not think it was unfair to tell people they only own the top, not the bottom of the land. He has seen mining companies speaking to the traditional leaders and communities. The process of communicating with people or consulting should be reviewed.

Mr Mnguni said there was an Act that governs what is beneath the soil. He agreed with Mr Nchabeleng and there was a need for the Committee to go to the North West and Northern Cape regarding the matter just like they have done before. Consultations are very important.

The Minister said they were deployed to the Department for different reasons. The Committee must consider engaging the Department of Cooperative Government and Traditional Affairs (COGTA) on other matters. Councils and traditional leaders would co-exist to solve problems. The law is in place and that is why departments have to get together. All of us are former victims of apartheid and no one from outside SA can solve our problems. People were taking advantage of the separate powers. The Committee has asked legitimate questions, but there is a witch in the room which the Committee has to find.

The Committee debated whether the KZN provincial department should continue with its presentation while it was still on the floor after the Committee allowed it to present even though it received submission from the Department just before the presentation.

Mr Nchabeleng suggested the presentation be discontinued because he found it difficult to follow it. He said the presenter was galloping and it must be understood he is a slow reader, but not a slow learner. He said the report has got contradictions that needed to be explained.

Mr Filtane proposed the meeting should continue but at a slower pace because he is also a slow reader and could relate to what Mr Nchabeleng was feeling.

Mr Madella felt the report was not worth the time of the Committee and doubted whether the Department had bothered to check the report before it was presented to the Committee.

Mr Nchabeleng said if the Committee was serious about solving people’s problems, it should discontinue the presentation because it was a half-baked document given to the Committee on the day of the presentation.

Mr Mnguni suggested the presentation should be continued but not be entertained by Members. He felt what KZN has done was malicious compliance.

The Chairperson stated that if the Committee agreed to stop the process, KZN must note that the late circulation of documents to the Members threw the Committee into disarray. Mr Ntuli (presenter) was spot on in his presentation but the negative part of it was the late submission to the Committee. The report was correctly written because it had specifics. Unfortunately, this would make it difficult for the Committee to report back to the CPAs. She proposed the meeting be deferred until KZN heard from the Committee.

Mr Mnguni told the KZN provincial department that it was representing people and must ensure it was not seen by the people it represented as a failure. People were coming to Parliament to seek solutions because they could not get positive attention from the Department officials.

Mr Filtane indicated the deferred presentation would give KZN a chance to get contact details of complainants because some people were not traceable, as pointed out in the presentation. This would help the Committee to provide feedback to the CPAs.

The Chairperson asked for an update on the farm doctor claim.

Advocate Bheki Mbili, Chief Director for Restitution Support: KZN, elaborated that the first phase of the farm doctor claim was settled between 2008 and 2010. The initial list had 1800 beneficiaries. Then when the second settlement was to be done, the number of beneficiaries in the list had changed. They then appointed SizweNtsalubaGobodo to do a forensic investigation to identify the legitimate beneficiaries of the farm doctor. The Regional Commission has not yet received feedback because the matter has not been resolved. The final report, it was hoped, would be concluded in the next four weeks.

The Committee expressed disappointment with the Commission on Restitution of Land Rights which, like KZN provincial department, circulated its presentation documents to Members at the time of the presentation.

Mr Filtane remarked that the Committee needed accurate information on what was happening regarding land distribution and title deeds. The Committee needed facts in order to share information with people because it did not have time to engage with the report.

Ms Vuyiswa Nxasana, Director for Land Tenure Administration: DRDLR, stated they were given instructions to provide a list of CPAs that have no title deeds but which participated in the public hearings. Though it was difficult to gather information, they managed to collect whatever information they could get even though it came very late.

The Acting DG said the report is available with all the details though it is very long. The process of moving SPLUMA from COGTA to DPME is in abeyance and that was why they came with a 5-page report.

Mr Filtane pointed out that since 2015 the executive of the country has been discussing which department is supposed to administer SPLUMA. Last year, the Department gave the Committee a detailed presentation on SPLUMA. So even if the SPLUMA report was given to the Committee 5 days earlier, it was not going to change anything. The issue was beyond the Acting DG.

Mr Madella said he does not want to see any further delays in the implementation of SPLUMA.

Mr Mnguni indicated it was not acceptable to waste the Committee’s time because the Department appeared not to be ready and prepared to appear before the Committee.

An official from the DRDLR informed the Committee the Department never delayed implementing SPLUMA. The implementation record was sitting at plus minus 80%. The current political head stated the focus would be on other matters and SPLUMA is going to take a back seat. There was 100% success rate of SPLUMA implementation in Northern Cape.

Mr Filtane wanted to know which aspects of SPLUMA have been implemented because the bone of contention was that traditional leaders did not have a decisive action on its implementation but were only being consulted. He disagreed with the notion that SPLUMA implementation was never delayed. What is known is that SPLUMA has been parked in the presidency.

Mr Mnguni said he has been trying to understand why the traditional leaders have not taken the matter to court, but the answer was that they did not have a leg to stand on. SPLUMA has been passed by Parliament. The Department must continue to implement.

The Chairperson indicated that SPLUMA was still with the Department and there was no reason why it could not continue to implementing SPLUMA. Next time the Committee needs a progress report on SPLUMA, the Department must tell the Committee how far it has gone in the implementation of SPLUMA, and not tell them SPLUMA was in abeyance. She also asked the Acting DG to ensure documents were delivered to the Committee in time and maintain open lines of communication with the Committee.

Adoption of Minutes
Committee minutes of 30 May 2018
were adopted with minor amendments.

The meeting was adjourned.

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