The status of the Mothlanthe High Level Panel (HLP) report again became the focus of strong commentary during the second day of the Committee’s stakeholder consultative meeting. Allegations that the majority opinion on the Committee was hostile to the report sparked strong denials and denunciations from a member, who warned that advocates of the report risked alienating those members of the Committee who were sympathetic to the HLP report.
The meeting also heard a heartfelt confession of culpability from a widely respected figure of civil society for some of the worst mistakes that were made in the early stages of policy formulation and legislation on land restitution following the 1994 democratic transition.
The negative impact of “bundled” claims and the Communal Property Association (CPA’s) in land restitution were discussed again as a key area of concern for the Committee. Allegations of widespread corruption also resurfaced strongly, with calls for the Department to respond systematically to what was in effect a systematic problem.
With the Commission estimating that it would need approximately R27 billion to deal with all outstanding claims, the absence of a specific budgetary allocation for the new claims process prompted the question of whether or not the re-opening of the lodgement of claims had an underlying political agenda.
The Committee heard that the Land Claims Court was under-resourced and needed permanent judges and more review authority to help with tribal claims and corruption; and those high ranking government officials still had the power to confiscate land with impunity due to ordinary people being unable to challenge this in court.
The Committee was disappointed to hear that the Department was aware of and had the names of officials involved in the substitution of names on claim forms. However, nothing was being done. The corruption was not a matter of a few isolated cases, It was systematic and therefore demanded that the Department responded to it.
The Chairperson welcomed everyone to the last day of deliberations on the Bill and expressed her appreciation for the interest shown by civil society and other stakeholders in the Committee’s efforts to finalise the public hearings’ process.
Submission by AGRISA
Speaking for AgriSA, Ms Annelize Crosby said the organisation was opposed to the re-opening of the restitution claims process. AgriSA believed that the process of re-opening the claims under the current challenges within the land reform programme was not in the best interests of landowners whose land has been subject to a claim since the 1998 process. The re-opening process introduced the possibility of competing claims on the same land. As with the 2014 Amendment Act, the Private Member’s Bill contained no provision for ring-fencing, which would preclude claims lodged against the same piece of land.
AgriSA however welcomed the provisions dealing with the appointment of a Judge President and Judges of the Land Claims Court. It was unacceptable for the Private Member’s Bill to indicate that it was not possible to determine the financial implications of extending the period of lodging restitution claims.
The proposed Bill would result in the state spending scarce funds, including the risk of paying double compensation in instances where land could be taken from a claimant under the earlier process and restored to a claimant under the new claims process. The disadvantages of the Bill outweighed any possible advantages.
In conclusion, the re-opening was detrimental both to landowners and claimants who had already been successful in getting restoration of their land. It was a serious disruption of the land claims process as conceptualized and implemented to date, and would lead to further delays.
Submission by Dr Aninka Claasen
Well known as an expert on land issues, Dr Claasen prefaced her submission by outlining her own role as an academic and activist during the early stages of the formulation of government policy on land restitution in the mid 1990’s. She told the Committee that with hindsight, it was now obvious that she should accept responsibility for some of the mistakes that were made in the conception and implementation of policy, and which had led to the current impasse in land restitution.
Dr Claasen said she had “pondered long and hard” about what had gone wrong with restitution, and how the current situation could have been avoided had the legislation been drafted differently. The first thing she had come to realise was that policy makers had not anticipated that restitution would have outstripped redistribution. It was assumed that redistribution would be the flagship programme of land reform, and that restitution would be a very small component. This would be by comparison by providing specific redress to the 3 and half million black South Africans who were forcibly removed between 1960 and 1986, when the Driefontein and KwaNgema communities won their historic victory against forced removals.
Contrary to expectations, restitution had been “flooded” by people with invalid claims. These were people who could not prove a history of land dispossession, but were desperately in need of land. The Commission, put under pressure by the overwhelming numbers, validated some of these claims to the detriment of people with provable, historical claims.
Secondly, there was the issue of Communal Property Associations (CPAs) versus individual rights. Officials under pressure to reach targets found it easier and simply amalgamated claims rather than engage in the time consuming process of sub-dividing claims and assigning claims to individual claimants. The key shortcoming of the CPA Act, which Dr Claasen co-drafted, was the lack of provision for enforceable family and individual rights within CPAs. It allowed for the lumping together of large groups of people, and thus contributed to the abuse of power. Dr Claasen said there was an urgent need to sub-divide existing CPAs that were locked into intractable disputes. The Sub-Division Act was never brought into operation despite being passed by the National Assembly.
Thirdly, she and her colleagues had “totally underestimated” the resources needed to do the job. Restitution was a “whole new function”, yet government found itself under pressure to restrict the staff complement after 1994. Restitution needed expert historical and legal skills which the Land Claims Commission sorely lacked. The Land Claims Court was under-resourced and needed permanent judges and more review authority to help sort out “bungled” claims. In addition, the Act should have been more detailed and provided the Commission with more independence with its own ring-fenced budget. This was absorbed into the Department over time.
Dr Claasen also touched on tribal claims and corruption, the two particularly worrisome developments which had come to plague the restitution programme. She was firm in her position that the “rhetoric” of tribal claims was at odds with the qualification requirements of the legislation on land restitution. The objective of the Act was specifically to provide redress for the “dispossessed and their descendants.” Tribal dispossession had mainly occurred before 1913 which was the cut-off period for land restitution claims. It was strange that the former President Zuma had repeatedly encouraged tribal claims. This had resulted in valid claims being held back in favour of the prioritisation of tribal counter-claims. As proof, she cited a number of cases where this had occurred, including an instance where a claimant had received death threats to withdraw his claim so that the Zulu royal family could lodge its own claims.
On corruption, Dr Claasen quoted the former Minister of Rural Development and Land Reform Mr G Nkwinti, as declaring that restitution had become a “honey pot for corruption”, with officials accused of substituting names and ID numbers for those of family members. These challenges had generated severe conflict and ethnic tensions (in one instance in the Kruger National Park, old graves had been dug up to prove which tribe had occupied the land first).
Because of past mistakes in land restitution, people were “locked in hellish situations.” Many were still waiting, and this included not only those stuck in the queues, but also those who had already received restitution awards. (see attached submission for examples)
On the HLP and its recommendations, Dr Claasen said her understanding was that the land sections of the report had been referred to the Committee for processing. However the HLP was no longer in existence and she understood that the Committee found itself in a difficult position because it had two separate processes to consider while Parliament was under pressure because of the Constitutional Court deadlines set out in the Land Access Movement of South Africa (LAMOSA) judgement. She also stated that her colleagues who appeared before the Committee the previous day had told her that the majority of Committee members took a negative view of the HLP recommendations.
This was “sad to hear” as she knew that the Committee was concerned about many of the same challenges the Panel had heard during its public hearings. Her plea was that the Committee considered incorporating at least two issues into the Bill, namely:
- a review panel to assess backlogged claims and where appropriate, refer them to the land redistribution programme. The review panel could also deal with disputed settlements, and
- a focus on individual rights as opposed to amalgamated group claims, including a mechanism in the Bill under discussion that enabled existing settlements to be sub-divided so that rights could be awarded to specific beneficiaries
In addition to the above, Dr Claasen called for the identification and dismissal of officials involved in corruption, and the closing down of opportunities for officials “to cheat people of their rights.”
Before members could respond to the two submissions, the Chairperson, referring to Dr Claasen’s remarks on the HLP report, said she wanted “to set the record straight” that no member of the Committee had expressed a negative attitude towards the report. The report still had to be adopted by the House, and Parliament had established a committee to deal with its recommendations. It was therefore not true, that Committee members were against the report. The Committee was not guided by the report “for now”. In any case, the HLP was not a creation of Parliament but was set up by the Parliamentary Speakers’ Forum, and until its report was formally adopted by the house, it had no binding effect on the Committee. The fact that Committee members agreed with some recommendations of the report and disagreed with others was neither here nor there.
Mr M Waters (DA) said that although there might be disagreement between Committee members on the issue, he agreed with the Chairperson that “it would be incredibly foolish” for the Committee to be against the report. He also urged his colleagues to rather engage with Dr Claasen’s submission than allow themselves to be distracted by the media-generated controversy around allegations made at the HLP’s public hearings.
Ms S Mbabama (DA) thanked Dr Claasen for her submission, especially the way it had catalogued the restitution policy errors responsible for the current state of affairs. The submission had raised afresh the dilemma articulated by Mr Mnguni the previous day which was: whether the mistakes of the past were so bad as to justify the sacrificing of the rights of people to claim back land. Ms Mbabama confessed that she still had no answer to the question.
Mr E Nchabeleng (ANC) urged the Committee to put pressure on the Department to prioritise the issue of “bundled” claims. It was unacceptable that people who had title deeds to dispossessed land could be lumped together with others who had no claim whatsoever to that land. Communally owned land was a different story, but where someone had bought a piece of land and had a title to it, the state should issue the individual with the requisite deed of ownership.
Mr A Madella (ANC) said the “hellish” conditions described by Dr Claasen in her submission made it even more urgent that the Bill under discussion be finalised as soon as possible. It pained him to hear what people were going through and he urged the Committee to maximise its efforts to rectify the situation by spending more time visiting communities than sitting in Parliament. On AgriSA, Mr Madella said he detected a contradiction between its stated support for restitution and its opposition to the re-opening of the claims process.
Mr K Robertson (DA) said the findings of the HLP on CPA’s in particular had “hit the nail on the head” and it was of the utmost importance that the report be adopted by Parliament. He was in agreement with Mr Nchabeleng that lumping title deed holders together with people who had no claim to the land just did not make sense.
He asked Dr Claasen whether the current powers of CPA’s to admit or reject members without verifying claims were not a violation of the principle of verification which is central to land restitution. Looking at the way CPA’s were operating currently, was it unreasonable to conclude that re-opening the lodgement of claims could make things even worse?
Referring to allegations that Committee members had a negative attitude towards the HLP report, Mr P Mnguni (ANC) dismissed those as “absolute lies”. As evidence, he cited his twitter account where he had a picture of himself and former President Mothlanthe, as well as numerous radio interviews where he had defended (“under heavy attack”) the HLP and former President Mothlanthe.
Mr Mnguni told the meeting that in his last speech in the House he had urged members to “listen to such voices” as Mr Mothlanthe’s. He therefore wished to dismiss the allegations with “utter, utter contempt” and he asked Dr Claasen to convey these sentiments to whoever had been her source.
His main concern being to “demystify” the HLP, Mr Mnguni said people had adopted two fundamentalist positions on the HLP. One extreme was total rejection while the other was a feeling that “God has spoken.” Recalling the debate around the status of the Public Protector’s findings in the Nkandla débâcle, Mr Mnguni said he and his ANC colleagues in Parliament had honestly believed that the findings were not binding. Similarly, in the case of the HLP report, the majority view was that the recommendations, having been made at the behest of the Speakers’ Forum, and not the House itself, were not binding.
Mr Mnguni said this was what he was trying to convey to stakeholders all the time – that legislatively, the status of the HLP was not certain. But in submission after submission, the stakeholders persisted in making the HLP a “departure point”. Mr Mnguni then declared that if “we had to part ways with the HLP report, then so be it”. After all, he was a member of the ANC and not of the HLP and therefore would “choose our ANC” over the HLP. He therefore warned those strongly advocating for the HLP report that they were at risk of alienating those like him who were sympathetic to it. To be clear on the matter he said: “yes, the HLP was “the child of our Speakers”, but Parliament could not, and would not outsource its law-making function. This was non-negotiable and not even the highest court in the land could change it.
In response to AgriSA, his view was that logically, the mistakes of the past did not justify the suppression of people’s rights to claim back stolen land. One does not outlaw the practice of medicine on account of the thousands of people who had died in the past at the hands of doctors. One simply improved the science of medicine to eliminate unnecessary death. The approach was the same when it came to land restitution, Mr Mnguni said.
Response from stakeholders
In responding to Mr Mnguni on the allegations that the Committee was biased against the HLP report, Dr Claasen explained that as a researcher, the triangulation of information in order to corroborate and get as near to the truth as possible, was a constant feature of her practice. She was therefore happy to find that the truth in this case was not so much a question of either being for or against the HLP, than it was of procedures and timetables.
She agreed with Mr Mnguni that the job of Parliament was to make laws and expressed the hope that despite the unfortunate time lapse between processing the Bill and the report, the House could find some way of adopting some of the HLP recommendations and thus enable the Committee to incorporate the relevant parts of the report into the Bill under discussion.
Responding to Mr Robertson’s comments on the powers of CPA’s to reject or admit members; Dr Claasen was inclined to agree that this could result in the principle of verification being undermined. A “terrible” mistake made in the drafting of the CPA Act had been to limit the legal protection of individuals in cases of potential conflict between individuals and the CPA, to a “personal” right instead of a “general” right.
Expanding on corruption, Dr Claasen said it was becoming clear that despite investigations by the Special Investigative Unit, high government officials still had the power to confiscate land with impunity due to ordinary people being unable to challenge this in court.
These cases were well known by the Department, including the names of officials involved in the substitution of names on claim forms. However, nothing was being done. The corruption was not a matter of a few isolated cases, It was systematic and therefore demanded that the Department responded to it in similar fashion.
In her concluding remarks, Dr Claasen said her main concern regarding the whole process of re-opening the lodgement of claims was the clear lack of a budget to implement the process. This lack of funding lent power to the belief that re-opening the lodgement of claims was nothing but a political trick designed to buy votes by advancing the claims of some at the expense of others. If this was the case, then talk of “inalienable rights” was dishonest and guilty of “raising false expectations.”
In her reply, Ms Crosby said AgriSA’s stance on restitution was motivated by two practical considerations. Firstly, despite 24 years of land restitution, the process had not delivered the socio-economic benefits it had promised. Secondly, for all that time, the farming sector had been operating under a cloud of uncertainty. Re-opening the process, without having resolved its multiple challenges (including the budget) was impractical; it was unfair on people who had been waiting for settlement of claims for years; and it could drive farmers off the land and destroy investment in the agricultural sector.
Briefing by the Acting Chief Land Claims Commissioner
Commissioner Lengane Bogatsu took the Committee through a brief summary of interactions between the Commission on Restitution of Land Rights (CRLR) and citizens/stakeholders during the public hearings on the Bill under discussion. Issues raised in those discussions included the following:
- delays in settlement of land claim and the slow pace of the restitution
- lack of sufficient communication from the commission on the status of
claims to the beneficiaries;
- lack of post-settlement support on restored land claims;
- status of land claims lodged after July 2014;
- maladministration of funds by the CPAs; and
- requests for the new date of the re-opening of land claims
Commissioner Bogatsu said the CRLR was in a process of fast-tracking the settlement of all outstanding land claims lodged before the cut-off date of 31 December 1998. There were ongoing stakeholder engagements across provinces to update claimants on the status of their land claims.
The Commission was also finalising the development of a policy strategic framework linked to the National Development Plan. The intervention was aimed at improving the implementation of the mandate of the Commission across all sectors with the hope of bringing about sustainable claim settlement models.
Mr Nchabeleng painted a worrying picture of the increasing dispossession in rural areas where mining companies had extended operations. As a result of mining, people in areas like Sekhukhuneland, where he came from, had become exposed to accidents and disease. He urged that government should find ways to either give people alternative land or force mining companies to repair the environmental damage caused by mining operations in these places.
Mr Madella wanted to know if there were any claims being investigated by the Special Investigation Unit (SIU), and if the Committee would be informed of the outcome of those investigations.
Commissioner Bogatsu responded that the Commission was aware of the situation in Sekhukhuneland and was in the process of consulting with state legal counsel on the matter. He confirmed that a number of claims had indeed been under investigation and information on the outcomes would be made available if the Committee so desired.
Mr Mnguni asked the Commissioner to state the exact number of claims made between 2014 and 2016. He also requested the Commissioner to indicate whether any breakthrough had been achieved on some of the bottlenecks in the claims process. He asked the Commissioner to comment on budget concerns.
Mr Bogatsu said that the actual number of claims was 163383.0.
Mr Madella asked whether the role of the Valuer-General had added any value to the land restitution programme. He asked further what the implications of Expropriation Without Compensation were for the land restitution programme.
Statement by Parliament’s Constitutional and Legal Services
Representing the above office, Mr Michael Prince told the Committee that he had compiled a document in which all the inputs made by speakers at the meeting had been captured. From this document he had selected three major issues which he thought needed an immediate response.
The first one was in connection with a submission by the Mineral Council of South Africa (MINCOSA) the previous day which concerned challenges to Clause 5 which sought to insert section 6A into the principal Act. Mr Prince said that after listening to the MINCOSA submission, it was realised that the Clause “needed tightening up”.
The second matter was the amendment of the definition of “community”. In principle, there would be no objection to the amendment but this would need further consultation to determine the feasibility thereof.
The last issue was the proposal to incorporate the recommendations of the HLP into the Bill. Mr Prince warned that should the Committee agree to the proposal, it would open up a whole new process of legislation, including a new round of public hearings.
The Chairperson thanked Mr Prince for his input and indicated that internal parliamentary consultation on these legal and other issues would continue until a final decision was made. She also thanked everyone for being part of the stakeholder engagement.
The meeting was adjourned.