Restitution of Land Rights Amendment Bill: deliberations

Rural Development and Land Reform

05 September 2018
Chairperson: Ms P Ngwenya-Mabila (ANC)
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Meeting Summary

The Committee continued its deliberations on the Restitution of Land Rights Amendment Bill [B 19 – 2017] and started the clause-by-clause reading of the Bill. Members were reminded of the three-day rule before the second reading of the Bill which was scheduled for Tuesday of the following week.

On clause 2, Members asked whether the National Land Restitution Register would have an independent body looking after it, given that later in the Bill the independence of the Land Claims Commission would be addressed.

On clause 3, the meaning of the wording ‘... in the province” was questioned.

On clause 4, Members wanted clarity on whether a claim could still be lodged after the specified period.

On clause 5, the Parliamentary Legal Advisor said that in the last meeting that clause had been flagged because part of the wording went beyond the jurisdictional powers of the Commission and he proposed a rewording of the clause which would keep within the jurisdictional powers of the Commission. Members also asked what happened when all the old claims had been dealt with, because there was a limitation on 2014 claims and newer claims as all old claims had to be dealt with first.

On the fines determined in clause 6, Members questioned what an appropriate fine would be given the amount of corruption within the country.

On clause 14, Members queried the Minister’s power to delegate to the Chief Land Claims Commissioner if that body became independent.

On the short title of the Bill, Members asked whether the year in which the Bill was initiated was used, or the year in which the Bill was finalised.

The Committee after going through the ‘A’ list and ‘B’ Bill, adopted the Committee report on the Amendment Bill.

Meeting report

Opening remarks
The Chairperson said the Committee was continuing its deliberations on the Restitution of Land Rights Amendment Bill [B 19 – 2017]. She said the Committee would look to complete the clause-by-clause reading of the amendment Bill that day.

Mr P Mnguni (ANC) informed the meeting that he had met with Parliament’s programme whip that morning and had been reminded of the three-day rule before the second reading of the Bill which was scheduled for Tuesday of the following week. That meant that the Committee had to complete its work on the Bill by that day or the following day.

Deliberations on the Restitution of Land Rights Amendment Bill [B 19 – 2017]
The Committee proceeded with a clause-by-clause reading of the Bill.

The Committee agreed to the objectives of the Bill and clause 1 of the Bill.
 
On clause 2, Mr K Robertson (DA) asked whether the National Land Restitution Register would have an independent body looking after it, given that later in the Bill the independence of the Land Claims Commission would be addressed.

The Chairperson said the Commission was the body that would develop the Register.

Ms Tshepo Mabhela, Legislation Specialist: Department of Rural Development and Land Reform (DRDLR), said that the Department was of the same view. It was about the establishment of the Register, whether the Commission was independent or not.

Mr Michael Prince, Parliamentary Legal Advisor, also concurred on the point. He further pointed out a technical error in clause 2. The amendment was to section 6. and not section 11 as indicated in the Bill and that needed to be corrected.

The Committee adopted clause 2 with the technical correction.

On clause 3, Mr Tshililo Manenzhe, Content Advisor to the Portfolio Committee, questioned the wording ‘... in the province”. What did it mean?

Mr Prince said one could rephrase it as “in the relevant province”, as it would relate to the province in which a claim was lodged.

The Chairperson asked what the difference between the two phrases were.

Mr Prince said there would be no real difference in meaning.

Mr P Madella (ANC) said the key issue was that a particular effort was being made at provincial level to promote land claims.

Mr Robertson said he agreed that it should read “in the relevant province”.

Regarding the phrase ‘relevant province’, Ms N Magadla (ANC) queried instances where it might refer directly to one province but might occur in other provinces as well.

The Chairperson said that claimants were living in different provinces and so, apart from the national advertisements, there was a need to look at the use of the provincial media.

Mr Mnguni said that claims should result in a notice of the claim in the national media and the media ‘in the province’, so the wording as it stood was correct and he proposed that it should be retained.

The Committee adopted clause 3 as it stood.

On clause 4, Mr Robertson wanted clarity on whether a claim could still be lodged after the specified period.

Mr Prince said that clause 4 amended subsection 5 of section 12 and that a claim could be lodged, on good cause, but no later than five years after the legislation had come into effect.

Ms Mabhela said that the Commissioner could prescribe a cut-off date for the lodging of claims but that that date could be no later than five years after acceptance of the legislation.

The Committee adopted clause 4.

On clause 5, Mr Prince said that in the last meeting with the Committee, that clause had been flagged because part of the wording went beyond the jurisdictional powers of the Commission and he proposed an amendment which would keep within the jurisdictional powers of the Commission.

The proposed amendments were:
Regarding: “16A.(1) Upon finalisation or referral to the court…”, the words ‘in terms of section 14’ would be added so that it would read “16A.(1) Upon finalisation or referral in terms of section 14 to the court…”

And regarding line 50 “… subsection (1) to determine whether a claimant who lodged a claim on or before 31 December 1998 has a valid claim.” Would change to “ … subsection (1) in order to investigate the merits of a claim lodged on or before 31 December 1998.”

Ms Mabhela said the revised wording was being proposed to keep the legislation in line with the mandate of the Commission because the current wording of the amendment went beyond the powers of the Commission.

Mr Madella asked what happened when all the old claims had been dealt with, because there was a limitation on 2014 claims and newer claims as all old claims had to be dealt with first.

Mr Mnguni said claims were processed on a ‘first come first served’ basis but the earlier claims might be fraudulent claims, so the amendments were trying to define a priority for all the claims and accommodate all stakeholders.

Mr Prince said that subsection 2 would not affect new claims, and section 16A subsection 1 meant that the Commission had to publish a notice in the gazette as to when the Commission would start processing claims.

The Committee adopted the revised wording of clause 5.

On the fines as determined in clause 6, Mr Robertson questioned what an appropriate fine was,  given the amount of corruption within the country.

The Chairperson said the fines were dependant on each case individually.

Mr Prince explained that the Minister published a schedule regarding the fines which would be commensurate with the period of imprisonment. The fines were, for example, R10 000 for three months and R20 000 for six months.

Ms Mabhela said the Act would prescribe the fines but issues such as mitigation and extenuating circumstances would be taken into account.

Mr Robertson questioned whether a six-month prison sentence was enough, given the level of corruption.

Ms Mabhela said that the Committee had, in fact, changed it from three months to six months in the 2014 Amendment Act.

Mr Mnguni agreed with Mr Robertson and suggested a maximum of 12 months instead of six months.

Mr Robertson said there were cases where millions of Rands were squandered and that six months was insufficient jail time. He seconded the proposal of 12 months as the maximum, unless the terms set out were guided by other legislation.  

Mr Prince said the duration of the prison sentence was policy driven and, in that case, was based on the stated corruption in the country and, therefore, a period of 12 months’ imprisonment could be set.

Ms Magadla supported the view of 12 months.

The Committee adopted clause 6 with the amendment of a maximum period of 12 months’ imprisonment instead of six months’.

The Committee adopted clauses 7 to 13.

On clause 14, Mr Robertson queried the Minister’s power to delegate to the Chief Land Claims Commissioner if the that body became independent.

Ms Mabhela said that currently the Director-General was the Accounting Officer of the Commission.  At a later stage, if the Commission became independent, then amendments might have to be made.

The Committee adopted clauses 14 and 15

On the short title of the Bill, the Chairperson asked whether the year in which the Bill was initiated was used, or the year the Bill in which it was finalised.

Mr Prince said that when the Bill was printed in its final form the year reflected would be 2018, but it was left as 2017, the year it was initiated, for now.

The Chairperson said that the meeting would adjourn for the drafting of the ‘A’ list and the ‘B’ Bill and when that was done it would be considered together with the Committee report. The meeting would reconvene at 3.30pm that day.

The meeting was adjourned.

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