Restitution of Land Rights Bill: stakeholder consultation day 1

Rural Development and Land Reform

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

Report of the High Level Panel on the assessment of key legislation

The Committee heard written submissions and hosted deliberations on the Restitution of Land Rights Bill from a cross section of stakeholder organisations as part of the public hearings process. The two-day discussion got off to a rocky start due to strong language between some Committee members and a land rights activist over the re-opening of the lodgement process for new claims.

Apart from this, the meeting eventually provided a platform for civil society and other stakeholders to interrogate some aspects of the Bill. Civil society in particular was quite united in its position that while in principle the re-opening of the lodgement of claims was not a problem, the primary objective should be the speedy resolution of the myriad challenges currently plaguing the massive backlog of claims from the first period of lodgement.

The dominant view of the Committee was that despite the current shortcomings of the land restitution programme, the “inalienable” rights to land justice of people previously dispossessed of their land could not be sacrificed. Proponents of this view warned that thousands of victims had been left out of the process, and due to the growing time span between dispossession and settlement of claims, potential beneficiaries were dying without having got redress. Also, the danger of permanent erasure of historical memory regarding instances of dispossession was now at its most acute among the dispossessed.

Civil society and other stakeholders provided a dose of reality for the Committee by highlighting a number of daunting challenges facing land restitution. The main challenge was articulated by the now well-known Mothlanthe High Level Panel (HLP) report which said there were still more than 7 000 unsettled, and more than 19 000 unfinalised, ‘old order’ claims (claims lodged before the initial cut-off date of 1998).

At the present rate of finalising 560 claims a year, it would take at least 35 years to finalise all old order claims; new order claims (lodged in terms of the now repealed Restitution of Land Rights Amendment Act of 2014) that have already been lodged would take 143 years to settle; and if land claims were reopened and the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.

One question the Committee was itching to ask mining bosses was whether they valued mining rights above the land tenure rights of people living on mining land. They proposed that the Committee convey an invitation to mine bosses and owners to engage directly with Parliament on this issue. A further concern was that the Bill lacked a focus on land ownership by women, which was an important issue in addressing the unequal patterns of land ownership in South Africa. 

As expected, the status of the HLP came up for discussion at the meeting, with some Committee members arguing that the recommendations of the panel were not binding on Parliament. On the other hand, civil society organisations, with the support of some Members of the Committee, were solidly behind the proposal that the HLP report be presented to Parliament in the form of a Bill.

Conflict among claimants also came up for discussion and this was linked with the practice of “bunching” claims - a method for speedily settling claims by putting them together and creating artificial Communal Property Associations (CPAs) in the process. In so doing, officials had ignored the definition of ‘community’ as set out in the Act, resulting in widespread crippling litigation caused by competing and overlapping claims.

The incapacity of key institutions – the Land Claims Commission; the Land Claims Court (LCC) and the Department of Rural Development and Land Reform (DRDL) itself in the administration and adjudication of claims, also loomed large in submissions made by stakeholders. Widespread corruption within government institutions was also mentioned.

Post-settlement support was also cause for concern, with stakeholders highlighting weaknesses in settlement agreements and uncertainty as to whose responsibility it should be to provide the crucial support needed by beneficiaries once the land had been handed over.  

Meeting report

Opening remarks

The Chairperson welcomed all and gave a brief background statement on the process leading up to the meeting. She said the Committee had conducted extensive countrywide public hearings on the redrafted Bill following its reintroduction in the National Assembly as a Private Members’ Bill by Mr P Mnguni (ANC). This followed a Constitutional Court judgement which had nullified the Restitution of Land Rights Amendment Act of 2014.

The Act had been passed to re-open the lodgement of land claims for a period of five years, and the Land Access Movement of South Africa (LAMOSA) took the matter to the Constitutional Court which declared that the Act was invalid. The Court said Parliament had failed to satisfy its obligation to facilitate public involvement in accordance with Section 72 (1)(a) of the Constitution.

As a result of the court judgement all claims that were lodged between 2014 and 2016 had been frozen and would only be processed after the Bill under consideration had been passed.

Submission by Prof Derick Fay

Prof Fay, a Fulbright Scholar with the Land and Accountability Research Centre (LARC) at the University of Cape Town (UCT), and Associate Professor at the Department of Anthropology University of California Riverside, made a presentation on the Bill.

His presentation set the tone for most of the input from civil society formations at the meeting. Reflecting the concerns of the civil society and the academic community, he highlighted three challenges in relation to the Bill and land restitution in general. These -  including some of the points made in support of his concerns - were as follows:

1. Number of claims

- at the current rate it would take 35 years to finalise claims filed by the time of the 1998

  cut-off (HLP calculations);

- re-opening the lodgement of more claims would likely affect not only new claims but old

  ones as well;

- this could lead to multiple claims on the same land and insecurity for current claimants


- how were these claims to be prioritised?

2. Conflict among claimants

- “bunching of claims” (A method for speedily settling claims by putting them and creating

   artificial Communal Property Associations (CPAs) in the process. In doing so officials

   ignored the definition of ‘community’ as set out in the Act) and

  -widespread litigation caused by competing and overlapping claims

3. Post-settlement support

- weaknesses in the settlement agreement; and

- the question “should post-settlement support be the responsibility of the Land Claims Commission”? 

Prof Fay proposed a number of legislative solutions which derived from the recommendations of the HLP. These included the following:

- clarify and elaborate Parliamentary and Court oversight to facilitate large numbers of

  claims; reduce or mitigate intra-community conflict and mandate post-settlement support;

- restore Court oversight over settlements;

- allow the Court oversight over existing agreements; and

- implement statutory criteria for the feasibility of land restoration and equitable redress 

On the debates around amending or not amending Section 25 of the Constitution, Prof Fay suggested that the HLP recommendations, in the form of a Bill, could allow the state to purchase, acquire or expropriate alternative land for a restitution award.

Submission by the Alliance for Rural Democracy (ARD)

The ARD was a cross-section of civil society organisations with a common concern for the defence of rural land rights; and democracy against policies favouring the interests of traditional leaders and politically connected business elites in the former Bantustans.

The National Coordinator, ARD, Ms Constance Mogale, said that the Restitution of Land Rights Act could not address the “land crisis” all on its own. The solution was to look at the whole “empowering mandate” contained in Section 25 of the Constitution.

Parliament needed to implement all of Section 25 (1-9) to address the land question. Ms Mogale said people “need land now, and could not wait for information in the archives”.

The ARD identified a number of urgent challenges faced by the land restitution programme, including:

- a capacity deficit within the institutions set up to drive the process. An “overwhelming”

  deficit of historical knowledge amongst the staff of the Land Claims Commission and the

  Department; the filing systems and digital database were “in disarray”; and

- the Land Claims Court had no permanent judges to deal with the massive workload of

  cases regarding the validity of claims; the nature of just and equitable compensation and


The ARD said the Bill under consideration had specific shortcomings including:

- no Socio-Economic Impact Assessment (SEIA) had been conducted before the bill was

  published so that one could be aware of what was being corrected in the old Act, and at

  what cost;

- no attempt had been made to incorporate the recommendations of the HLP report into

  the Bill; and

- the Bill did not provide a mechanism for the Commission to be accountable to the Land

 Claims Court, and did not say anything about stabilising the Court.

The ARD therefore strongly recommended some of the following:

- the statutory independence of the Commission from the DRDL had to be restored and

  regional land claims commissioners appointed;

- the capacity of the Commission needed to be jacked- up and the Land Claims Court

  needed to be stabilised by the appointment of permanent Land Claims Court judges;

- the creation of an independent panel of researchers within the Commission to research


- the definition of a “community” in the Bill had to incorporate the principles established in

  the Kranspoort judgement; and ensure that the interests of the dispossessed are not

  diluted by those piggy-backing on claims, such as traditional communities or traditional

  leaders not dispossessed in the manner contemplated in the Constitution and the

  Restitution Act;

 - ensure that the definition of community was in line with the initial intention of the

  Restitution Act, which was not intended for pre-1913 tribal claims;

- ensure that just and equitable compensation was paid to current owners;

- provide for formal reporting by the Commission and the Minister to Parliament and to the

 Judge President of the Land Claims Court at specified intervals on progress in the

  implementation of the Restitution Act as amended; and

- post-settlement support and advice had to be appropriate developmental and protective

  of beneficiaries from unscrupulous business deals.

Submission by LAMOSA

An independent federation of rural Community Based Organisations (CBOs) advocating for land and agrarian rights, LAMOSA, spearheaded the Constitutional Court challenge which resulted in the Court interdicting Parliament from passing the amendments to the Restitution of Land Rights Act 22 of 1994.

In his submission, Mr Henk Smith of LAMOSA was quick to point out that in its application to the Constitutional Court; the organisation did not oppose the re-opening of land claims for those claimants who had failed to lodge claims timeously. LAMOSA was only opposed to the re-opening of the process without a clear and unambiguous ring-fencing of existing claims.

Concerns highlighted by LAMOSA included the following:

- claimants, many of them communities who had waited for decades to obtain redress,

  could suddenly be faced with the potential loss of the land they had just got back through

  a new claim being lodged over the same land;

- the Commission, having at no stage of its existence been able to 'get on top' of the claims

  it had accepted by the end of 1998, was swamped by between 75 000 and 80 000 new


 - a vague instruction to the Commission to 'give priority' to the existing non-finalised

   claims in the amended section 6 (1) (g) did not address the administrative nightmare

   facing the Commission in having to deal with new claims; and

- the financial implications of the re-opening of the claims to both the landowners and the

  public purse could be “enormous”.

In light of the above, and while not necessarily in opposition to the Bill under consideration, LAMOSA had submitted a number of proposals based on tabling before Parliament some of the recommendations of the HLP report in the form of a Bill. Such a Bill could result in the following:

- improved accountability of the Commission to Parliament and claimants;

- the inclusion of a mechanism to deal with "positive obligations of the state" in land

  restitution and post-settlement support;

- the coordination of governmental functions and restitution relief, taking account of the

   proposed Land Reform and Redistribution of Land Act; and

- provision for the transfer of land within 12 months of an order of the

  Land Claims Court

Mr Smith said LAMOSA believed that a Bill derived from the HLP report would be compliant with the “spirit and substance” of the judgement and order of the Constitutional Court and would bring certainty both to old claimants and new claimants, as well as future claimants.

Compared to the added uncertainty potentially caused by section 16A of the Bill under consideration, the HLP-derived Bill proposal set clearly identifiable markers for the declaration of when the Minister may set the date for the re-opening and processing of claims.

The HLP proposal could strengthen the Land Claims Commission and the Department by requiring that the responsibility for land reform and restitution be shared by all government Departments and organs of state. 

Submission by PLAAS

Dr Phillan Zamchiya prefaced his submission by noting the good intentions of the Bill. However, like his civil society counterparts before him, his inputs leaned heavily on constraints identified by the HLP report such as unrealistic time-lines for the settling of claims; the inadequate capacity of the Commission to settle claims, and others already highlighted.

The upshot of his submission was that the whole process had to be fast-tracked. The Commission could not continue with the same approach as before.


While welcoming of the various inputs from civil society, Mr P Mnguni (ANC) however stressed that restitution as a component of land reform was “here to stay”. Despite the challenges enumerated by previous speakers, he argued that the rights of South Africans to claim back land was “inalienable” and therefore could not be ignored. According to him, the “diagnosis of the experts” on Land Restitution did not fit the prescription, namely: that government should scrap the idea of re-opening the lodgement of restitution claims.

Mr Mnguni also asked the previous speakers to outline their position regarding the recommendations of former President Kgalema Mothlanthe’s High Level Panel (HLP) on land restitution. Were they binding? His own view was that the HLP report was not yet a “house resolution by Parliament” and until such time, its recommendations were not binding. The report was a “guiding light” on the work of Parliament but otherwise had no “official standing”.

Mr Mnguni also raised the question of whether a Socio-economic Impact Assessment (SEIA) had been conducted in relation to the Bill under discussion. His view was that the parliamentary rule book did not require such assessment because if that were the case, Parliament could never pass a single statute. On pronouncements regarding the lack of capacity at the Land Claims Court, Mr Mnguni took previous speakers to task (“I could be harsher”) and accused them of having failed to “read the Bill first” before coming to Parliament to make submissions on it. He said the Bill had a “mouthful” to say on the same concerns raised by previous speakers before the Committee.

Mr A Madella (ANC) noted and expressed his appreciation for Prof Fay’s comments on the Bill but was also disappointed that other speakers had criticised the Bill without offering solutions. He said the other speakers’ objections to the Bill amounted to depriving ordinary South Africans of the opportunity to claim land wrongfully taken from communities. Following his colleague Mr Mnguni, he said it was “disingenuous at best” for the previous speakers to pretend that the Bill had nothing to say about addressing the capacity constraints at the Land Claims Court.

Speaking of concerns around how the Bill defined a “community”, Mr Madella said he would have welcomed civil society’s own inputs on this matter instead of just criticism. On the HLP, he emphasised that despite some public reservations expressed by his party, the Committee was not totally dismissive of its recommendations. Parliamentary procedures and protocols had to be followed regarding the HLP report, and Parliament could not come to a standstill and only focus on the report.

Mr  E Nchabeleng (ANC) also voiced his disappointment with some of the comments from previous speakers who he said “were representing those who cannot represent themselves in this Parliament”. He contrasted these comments with the overwhelming support the Bill had received from communities during public hearings held across the country. Like his ANC colleagues, Mr Nchabeleng felt that the ARD and LAMOSA were in effect denying victims of dispossession an opportunity for redress.

Mr S Swart (ACDP) said while he understood the point of view of  Mr Nchabeleng and Mr Madella before him, he was equally alive to concerns about the capacity of the Department to complete the old order claims and why that may be a reason for opposing the re-opening of the window for more claims. He pointed to the real budgetary constraints experienced by the Department and asked that the Committee take those seriously.  He also understood that the HLP report was not binding but he felt that it was very “persuasive” and that it reflected the views of thousands of people who had appeared before the Panel during its travels around the country.

Referring to Mr Smith’s presentation, he asked that the idea of a financial bond as an instrument to finance land restitution be explored further.  Mr Swart also said that it was “illuminating” for him that State Owned Enterprises could possibly be obstacles to land reform by demanding that they be compensated when state land was expropriated. 

To add more urgency to the case for reopening of claims, Mr Mnguni reminded the meeting that many of those who had been alive during actual instances of land dispossession - and therefore had oral evidence to back up restitution claims - were now in old age and dying by the day. Delaying the re-opening of claims meant the loss of a fund of knowledge that could prove indispensable for the land restitution programme.

Citing the current atmosphere of accelerating land invasions, Mr Mnguni also argued that a decision not to go ahead with the reopening of claims could encourage illegality and add more instability to an already difficult moment of land reform. In pressing for the adoption of the Bill, Mr Mnguni also used the biblical story of Jacob and Esau as an analogy for a growing number of competing claims where people might have been awarded land that had belonged to others. Re-opening the claims window could therefore help correct that injustice.

The Chairperson also had a number of queries and remarks for some of the presenters. Referring to the judgement regarding the lodgement of new claims, she said her interpretation was that the court had not declared the Bill irrelevant, but had identified “some gaps” that needed to be addressed before the Bill could proceed.

The Chairperson felt that none of the presenters had said anything on illegal land invasions and asked that the issue be part of the discussion in order to assist the Committee in its assessment of the situation. Another area of assistance was in the identification of beneficiaries – what mistakes had been, or were being, made, and how could they be rectified?

The Chairperson agreed that the disappearance of claimant files had been one of the most frustrating challenges of the restitution process but she pointed out that the new system of electronic lodgement of claims had addressed the challenge.


Ms Mogale of ARD immediately responded by expressing her dismay at the adversarial attitude that Committee members had adopted towards her presentation. She said her decision to be part of the session was taken in a positive spirit and it was disappointing to see that it had degenerated into something like a soccer match between “Chiefs and Pirates”, with civil society on one side and government on the other.   

The Chairperson interjected and assured Ms Mogale that despite the apparently negative remarks of some Committee members, there was no rivalry between the two sides. She maintained that government and civil society organisations were “one team”. She urged Ms Mogale to continue with her input because it was highly valued by the Committee.

Ms Mogale said she wanted to clear two possible misconceptions about her presentation. Firstly, she was not representing the people who had been part of the public hearings on the Bill, and second she was not opposed to the re-opening of claims. Therefore “emotionally provoking” statements such as those made by Nchabeleng and his ANC colleagues were off the mark.

Ms Mogale said the people at the public hearings were represented by the ANC and its political counterparts. The people had voted for these parties and now these parties were failing to fulfil promises made. The Chairperson again interjected and asked Ms Mogale not to be emotional and stop her accusations. She pointed out that Ms Mogale might also be a member of one of the political parties she had accused of failing and thus was herself complicit in that failure.

The Chairperson stated that disagreement was “not a fight”, and that in fact the Committee agreed that a lot of what civil society had pointed out could be of great assistance in passing the Bill. She begged Ms Mogale to calm down and tone down her confrontational language.

Ms Mogale again stated that her organisation was not against the Bill per se, but that the ARD only wanted to draw attention to the Bill’s failure to recognise the limits of land restitution in the context of dispossession that pre-dated the 1913 Land Act – the cut-off date for land claims. In addition, the Bill lacked a focus on land ownership by women, which was an important issue in addressing the unequal patterns of land ownership in South Africa. 

Ms Mogale reminded the Committee that back in the 1990’s she was part of a group of civil society organisations that came to Parliament to urge the state not to close the window for the submission of claims. “Did the state listen”, she asked? “No, the government went ahead in December 1998 and closed it”.

On the HLP report, Ms Mogale said her position was that the Bill could gain significantly from some of the recommendations made without adopting the report as whole. The HLP was a creation of Parliament and had become a platform for a massive number of ordinary landless people. She hoped it was not going to meet the same fate as the 2005 Land Summit, which had a number of good recommendations that never saw the light of day. 

Ms Mogale said her organisation, together with others such as LAMOSA,  was waiting for the lodgement process to re-open but this time with better capacity in terms of staff and research; better conflict resolution strategies; a clear focus on women ownership; and post settlement support (and without it being conditional on beneficiaries coming up with a business plan).

In conclusion, she assured the Committee that while no one was against the Bill, the main concern was that it should take into consideration other aspects of the land reform programme and align itself accordingly.

Mr H Smith began his response by saying that a close reading of Section 16 (A) of the Bill precluded any amount of processing or research/investigation of new claims as well as contested ones until all old claims have been finalised or referred to the Land Claims Court.

In his opinion, the Bill did not strengthen the CRLR. To achieve this he directed the Committee to one of the HLP’s recommendations, which stated that “ enforce accountability and implementation, the Act must be amended to provide for formal reporting by the Commission and the Minister to Parliament, and to the Judge President of the Land Claims Court at specified intervals ... on progress in the implementation of the Restitution Act as amended.” (page 252 of the HLP Report)

Echoing Ms Mogale’s position on the Bill, Mr Smith said LAMOSA’s only concern was that restitution be done “faster and better” on the old order claims, otherwise the danger of land invasions on registered but unprocessed claims was a distinct possibility.

On the issue of the proper definition of “community”, Mr Smith again referred to the HLP report whose alternate definitions prevented the kind of debacle created by the Department in cases like the Popela land claim where officials wrongly verified community members seven times over a ten year period.

Prof Fay of LARC had nothing more to add to what the previous two speakers before him had said except to ask that the Bill anticipate the real possibility that land invaders could take over land already being processed as a legitimate claim for another group. In such a case, the Bill would need to set out clearly what dispute resolution procedures should be followed.

Dr P Zamchiya of  (PLAAS) highlighted research as a key ingredient for the success of land restitution. He urged that the Bill seriously took on board the HLP’s recommendation for an independent panel of researchers to speed up the administration of claims.

On the question of how a community should be defined, he was firmly of the view that the entrenchment of chieftaincy should not be the objective of those engaged in such an exercise. He was in agreement with his fellow civil society stakeholders that certain fundamental measures needed to be in place before the re-opening of claims, or else the whole process could prove to be a non-starter. 

Submission by Mineral Council of SA (MINCOSA)

Ms Zakithi Zama, Manager, Stakeholder Engagement, MINCOSA, read a submission to the Committee which had as its primary focus the aspects of the Bill which impacted directly on the mining industry.

As a preamble to her submission, Ms Zama stated that MINCOSA supported the concept of restitution as contained in Section 25(7) of the Constitution and also in the Restitution of Land Rights Act, despite the fact that restitution had caused uncertainty regarding the ownership of land by mining companies.

However, MINCOSA assured the Committee that such uncertainty was outweighed by the need and imperative for restitution, as set forth in the LAMOSA judgement.

MINCOSA therefore wished to raise two issues in connection with the proposed Bill, namely:

  • the extension of the date for lodgement of claims to 5 years after the commencement of the Amendment Act which would follow the enactment of the Bill; and
  • the non-ring fencing of (1) claims lodged on or before 31 December 1998 from all claims lodged thereafter; and (2) claims lodged on or before 28 July 2016 (when the Land Access Case was decided) from all claims lodged thereafter.

On the first issue, MINCOSA argued that the extension would negatively affect the mining sector by threatening the security of tenure of mining companies. Section 5 of the Mineral and Petroleum Resources Development Act (MPRDA) gave the holder of a right of mining broad statutory rights in respect of use of the relevant property.

However, mining companies frequently elected to acquire the land, irrespective of whether the mining was underground or opencast, to avoid conflicts with third party landowners, and to avoid having to pay compensation to third party landowners for damage to land as a result of mining or prospecting.

 An extension of the date for lodgement of restitution claims was also contrary to the object of security of tenure in sections of the MPRDA which provided for “reaffirming the State’s commitment to guaranteeing security of tenure in respect of prospecting and mining operations”. 

According to MINCOSA, security of tenure was an important investor requirement, whether such an investor was a citizen or a foreign person. South Africa was trying to encourage direct investment in the mining industry, whether by citizens or by foreign persons.

The limitations placed by the Bill in its extension of the date for lodgement of restitution claims on security of tenure in regard to land were contrary to South Africa’s attempts to encourage direct investment in the mining industry, be it by citizens or by foreign persons alike.

Furthermore, South Africa was party to various Bilateral Investment Treaties (BITs) with other countries. Although South Africa was in the process of not renewing, or of withdrawing from such treaties, they normally contained a provision that in respect of investments which were made while the relevant BIT was in force, its provisions continued in effect with respect to such existing investments for a period up to 20 years after termination.

An extension of the date for lodgement of restitution claims would also contravene the “fair and equitable treatment” clause in BITs which prohibited subjecting investors or investments to unjustified, unreasonable or discriminatory measures.

The second issue raised by the MINCOSA submission was in relation to Section 6(1)(g) of the Restitution Act (as amended by the Restitution of Land Rights Amendment Act, 2014, which was declared invalid in the LAMOSA judgement), and which provided that the Land Claims Commissioner had to:

“6(1)(g) ensure that priority is given to claims lodged not later than 31 December 1998 and which were not finalised at the date of the commencement of the Restitution of Land Rights Amendment Act, 2014.”.

Although the effect of the LAMOSA judgement was that the above mentioned Section 6(1)(g) had been set aside, and although the draft Bill which preceded the Bill under discussion proposed to insert a new replacement Section 6(1)(g), the Bill no longer proposed to insert a new replacement Section 6(1)(g). Instead it relied on clause 1(a) on Section 2(1)(a) (incorrectly called “(a)” in the Bill (being prefaced by the words “Subject to section 16A”.

The new Section 16A as proposed to be inserted by clause 5 of the Bill read:

Processing of claims:

16A. (1) Upon the finalisation or referral to Court of all claims lodged on or before 31 December 1998, the Chief Land Claims Commissioner shall certify in writing that such claims have been finalised or referred to the Court, and shall publish a notice in the Gazette and in the media circulating nationally and, in the province, stating the date on which the Commission shall start processing claims lodged - (a) from 1 July 2014 until 28 July 2016; and (b) in terms of the Restitution of Land Rights Amendment Act, 2017.

(2) Notwithstanding anything to the contrary contained in subsection (1),

when processing claims lodged on or before 31 December 1998, the

Commission may, on a case by case basis and where it would be in the

interest of justice to do so, consider a claim contemplated in paragraph

(a) or (b) of subsection (1) to determine whether a claimant who lodged

a claim on or before 31 December 1998 has a valid claim.”

 Therefore MINCOSA ‘s submission was that the omission of Section 6(1)(g) and the insertion of the proposed Section16A did not resolve the issues which were raised by the applicants and by the Court in the LAMOSA case.

In addition to the two matters raised MINCOSA also directed the Committee to Clause 15 of the Bill which proposed the repeal of the Amendment Act, 2014. MINCOSA however submitted that the Amendment Act, 2014 had already been declared invalid in the LAMOSA judgement - in paragraphs 93.2 and 93.3 - so that technically it may not now be possible to repeal it, a matter which MINCOSA recommended that it be considered by the Parliamentary legal advisor.

Consequently MINCOSA‘s view was that the Bill should not be passed. Alternatively, should it be passed, it should first be amended in accordance with the submissions above.

Submission by COSATU

The Trade Union Federation’s Parliamentary Coordinator, Mr Matthew Parks, said his organisation was unequivocal in its support for the Bill, especially in the context of a “growing crisis of rural and urban landlessness” in South Africa. COSATU had been consistent in decrying the failure of government to eradicate the legacies of the 1913 land dispossession, and had expressed its disappointment at the delays which had beset the Bill’s progress through Parliament.

COSATU particularly welcomed the reopening of a five year window for new claims, which would bring much needed relief for 3.5 million dispossession victims and their families.

The federation also made some proposals aimed at improving the Bill, such as:

  • the Bill should be amended to clarify the criteria upon which existing claims could be delayed and what would constitute good cause;
  • the Bill should be amended to require that the Land Restitution Claims Register be published on the Commission’s website at all times; and 
  • the Department of Rural Development and Land Reform and the Department of Agriculture, Forestry and Fisheries should be re-united

In conclusion COSATU therefore urged the Committee to: strengthen the Bill in order to protect existing land claims; strengthen its progressive transparency and accountability clauses; urgently pass the Bill, and speed up the passage of related Bills.

Submission by the South African Human Rights Commission (SAHRC)

Among the many observations made by Advocate Jonas Sibanyoni, Commissioner, SAHRC, at the stakeholder meeting were the following:

  • the SAHRC supported the Bill but with the proviso that when it became law it should not disadvantage existing claimants;
  • Section 16 A should be clarified as to how claims lodged after 2014  should be taken into consideration; and
  • the SAHRC was concerned that more claimants elected to accept monetary compensation in place of land.


Referring to an observation made by the Mineral Council of South Africa (MINCOSA) on the relationship between mining rights and the tenure rights of people living on communal land, Mr Madella asked the presenter for more clarity on this issue as MINCOSA's position seemed at odds with the “broad spirit of land restitution.”

Mr Mnguni responded to comments made by the HRC in relation to budgetary constraints by citing the Fees Must Fall campaign through which students successfully compelled government to come up with funding for free tertiary education in South Africa. Similarly, Mr Mnguni believed that with enough pressure from below, government could be persuaded to make adequate funds available for land reform.

Speaking of the input from MINCOSA, Mr Mnguni expressed a strong wish for a high level meeting between the Committee and a delegation of actual mine owners, for a more meaningful engagement on land restitution. One question he was itching to ask was whether mine bosses valued mining rights above the land tenure rights of people living on mining land. He proposed that the Committee ask Ms Zama to convey an invitation to mine bosses and owners to engage directly with Parliament on the issue.

For Mr Nchabeleng, the growing presence of mining in communal land areas, especially in Sekhukhuneland where he was born, had resulted in what he called “the second dispossession” of people’s land. Mining bosses did not care about the impact of mining on the land and the communities living on it, they just took what they wanted and left. 

He gave the example of a mining area called Masese in Limpopo, where children had contracted asbestosis (a lung disease caused by inhaling asbestos fibres) long after asbestos mining had ceased in the area. He agreed with Mr Mnguni that the Committee had to hold frank and direct discussions with mine bosses soon. For him, the bottom line was that land rights could not be surrendered to mining.

The Chairperson agreed with Mr Mnguni and Nchabeleng that an urgent discussion on mining was needed. She suggested that the Department of Mineral Resources also be part of the meeting. 

The meeting adjourned.


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