Land Claims Commissioner: briefing; Commission on Restitution of Land Rights Annual Report: briefing

Meeting report

AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE

Restitution Update: Annual Report to 31 March 2003 and Progress to Date
Land News, Volume 1, No 1, June 2003 Focus on Land Month(will arrive shortly)
Restitution of Land Rights Amendment Bill [B42-2003]
Commission on Restitution of Land Rights Powerpoint Presentation

Commission on Restitution of Land Rights website http://land.pwv.gov.za

SUMMARY
The Commissioner presented the annual report of the Restitution Update. He noted some of the challenges faced. Discussion revolved around troubleshooting the challenges and clarification on measures taken to resolve the problems encountered. The Commissioner outlined the purpose and amendments for the Restitution of Land Rights Amendment Bill. The opposition strongly questioned and opposed the reasoning and the implications of giving undue powers to the Minister. The Commission clarified the intention and why this was the best way to deal with this matter.

MINUTES
Restitution Update
The Chief Land Claims Commissioner, Mr T.T. Gwanya discussed the elements of the Land Reform Programme, such as the Land Policy, Redistribution, Land Restitution and the Land Tenure Reform Programme. He clearly stated the Restitution Strategic Objective which entailed access to land and redress for dispossessions, research and settlement of urban and rural claims and post settlement support sustainable projects.

The cumulative settled claims from 1995 to date was 39 687 claims, of 96306 households, for 518710 beneficiaries totaling 781 648 hectares. (For a detailed provincial break down refer to the power point presentation).

Mr Gwanya noted that there had been a R500 million increase from 2003/04 to 2004/05 in their budget, which was rare. He noted that this amount was likely to be inadequate, as they needed an additional R 1.2 billion to settle claims. The report illustrated the budget allocation for this year. MrGwanya informed the committee that they had experienced problems with the lack of adequate permanent staff. He said that they were in the process of employing permanent staff.

He explained that all the statistics first needed to be processed when processing the land claims. Accuracy of the statistics was ascertained by subjecting the Database of Settled Restitution Claims to a process of internal auditing.

Mr Gwanya explained that one claim was equivalent to 2334 individual claims. He added that they were hoping to settle all claims by the end of 2003.

Restitution challenges ranged from late lodgment of claims, the illiteracy factor of the rural claimants, construction of family trees, identity documents, death certificates and marriage certificates, unco-operative white farmers, protracted negotiations and disputes and budget constraints of municipalities with regard to housing development. An example of thriving farms to be maintained after distribution illustrated one of the major challenges faced in terms of education and capacity building.

Mr Gwanya noted that Post Validation Projects were in place and it aimed to resolve claimant verification and trace family trees amongst other functions.

With regards to agricultural development, Mr Gwanya noted that they had taken it upon themselves to educate their people. Also, that housing was seen as a challenge in urban areas whilst rural housing in settlements was an issue of debate with the Department of National Housing. Mr Gwanya added that they had recently received support from a Swiss Development Cooperation, which indicated its support on land reform projects in South Africa. He also stated that they had received support in the amount of six million Euros from Belgium.

Discussion
Mr Nefolovhodwe (AZAPO) congratulated the Commissioner on assuming the new position and expressed appreciation for his willing availability.
He proceeded to enquire whether there where disputes between chiefs and people of the land, also how the commission planned to deal with the reality of the farmers, their hostile behaviour and the transfer of highly productive assets. He also asked how long the Claimant Verification Programme took to process the claims, specifically with continuous poverty increases in the rural areas.

Mr Botha (DA) asked the commissioner how budgetary constraints would affect the planned objectives to be reached by the year end.

Mr Maluleke (DA) enquired why the rural and urban area claims were disparate and unreflective, according to him. He wondered why there were not more people making claims especially in areas such as Sophiatown, where it was obvious that there were more claims to be made. He stated that he was going to suggest Private Member Bills. He also asked about the criteria used to differentiate a community from households, in areas such as Westbury and District 6.

Commissioner's Response
Mr Gwanya stated that the Claimants Verification Program was launched in September, having been in operation for close to twelve months. Outstanding claims were being processed. He stated that R854 000 000 and R939 000 000 were the budgets allocated over four years that was sailed through. He thought there would be a possibility of leftover funds after 2005. He was not too concerned over the financial aspect of the restitution as the National Treasury has come to understand the challenges of the programme and responded positively. The softer issues needed processing and this was also supported by the funders. He noted a challenge in the Mpumalanga area, where farmers where charging profit prospective prices for the land rather than the actual value of the land. Prices up to R45 000 per hectare were quoted. What needed to take place was to determine the realistic value of the property before any sale could take place. He expressed interest in the Private Members Bill. The issue of the lodgment of the claims rested with the manner of lodgment. He noted that group claims where a series of individual claims grouped together for processing which made it easier. This is different from an individual claim representing various claims thereby resulting in one beneficiary. Mr Gwanya asked his colleagues to take over and respond to the questions that were relevant to them and their areas.

Mr M Mokono (RLCC-Limpopo) continued from Mr Gwanya. He stated that one of the ways of lodging a claim before 1998 was by employing a chief to do so on behalf of the community. This was different from the chief's claim. The community was to benefit from the claim, not the chief solely. Communal claims have to be dealt with proficiently so that all the claimants may participate in the land restitution and in highly commercially viable areas, the responsibility includes capacity building and training to ensure profit participation of the claimants in the wealth of the land. That was a challenge that the current owners could assist with by assuming a mentoring position on the land until the claimants were enabled by the way of skills transference. The current owner may chose to remain engaged by becoming a strategic partner since they are specialist in the field. He noted that this had to happen immediately as the land could not be abandoned until a later stage, especially agricultural land had to be dealt with timeously, as in the Lesitele area in the Limpopo.

The Chair interrupted to say that members of the commission should speak generally and not make reference to specific examples.

Ms T Shange (RLCC-KwaZulu-Natal) stated that the Amakhosi accept that the law does not allow them to claim on behalf of the people for him/herself. The prices of land differed depending on where the land was. The value was considered carefully, yet the current owners had taken them to court to defend the value of the land. Some of these current landowners increase the value of the land by up to two hundred percent making it impossible for the government to make a reasonable offer. This was the biggest challenge making restitution impossible.

Mr B Mphela (RLCC-Gauteng and North West) stated that in Gauteng the problem of not lodging claims was prevalent, especially in the Eastern and Western townships. The people are doubtful that it is possible to reclaim the land and as a result do not apply. If that is the case, then there was little that could be done.

Ms Mantole (Unsure of Spelling & Party) enquired the time frame for employment of the new personnel and the new funding. With regard to the forest claims, she wondered whether companied such as Mondi where being monitored.

Mr Bishop (Unsure of spelling - ANC) was concerned about people who had moved into areas that they had previously been forced to move from. He wondered how this issue was being dealt with.

Mr Abram (ANC) wondered how the identity documents, birth certificates battle would b resolved. He asked about a resolution to that problem would be mobilizing the department of home affairs in the rural areas. He enquired about funding and capacity where restitution had taken place thus far. He noted that even though the Transvaal Agricultural Union were resisting the changes and not co-operating, the farmers that do co-operate did not want to be tainted with that reputation. He suggested a distinction between the two. He spoke of a place called Patfontein which has reached the headlines of the press lately reporting how restitution had taken place in this area three years ago but nothing had been done since. He was keen to know what was happening there. He suggested that the old owners play a proactive role to the restitution process in terms of skills transference.

Mr Ngema (IFP) wondered whether there were farmers who have agreed to aid the transformation by imparting of skills.

Dr Schoeman (ANC) stated that this Commission was one of the few success stories and he wished the Commission well. He was concerned though that there was no cut-off date and land restitution being such an emotional thing had to come to an end. He wanted to know what was happening with that.

The Chairperson interjected stating that the Commission was not to answer that question but that it would be up for discussion in a committee meeting only.

Mr Botha (DA) thanked the Commission and asked that the information regarding capacity be streamlined so that it was accessible. He noted that the reaction of the hostile farmers was a natural and expected one and that the press was having a field day with it but that it was just the odd one and that most farmers wanted restitution. There needed to be a balance between the people being restituted and the farmers being harassed which could be solved with better communication.

Mr van Niekerk (NNP) stated that there was no doubt with regard to the restoration of property and human rights. He wondered about the procedure regarding the lodging of the claim and how soon after the landowner would be informed about it. He referred specifically to the Sun Bird Lodge. What was the timeframe and was there a compulsion to inform the landowners as soon as a claim was lodged?

Mr Maluleke stated that the commission was entertaining only those who where deeply affected by forced removals and not the rest. He stated that it was unfortunate that politics was coming into play once more.

The Chairperson interrupted to state that party-politics should be about land issues.

Commissioner's Response:
Mr Gwanya stated that 150 people would be appointed over the next two months.

With regard to the forestry claims, there had been long sessions with Water Affairs and Forestry. It was a situation that needs a balancing of the government's priorities - Forestry vs Private Claims. Negotiations with the forestry industry had yielded positive results and dispelled some of the myths held by Sappi and Mondi. At first they were afraid over the investment deterioration. After clarification of rent matters, this matter was resolved. He clarified that whoever occupies the forestry land for commercial gain would have to pay the rightful owners a rental fee. There would be no occupation of the forests therefore enabling the forestry business to continue. This posed there problem of weighing rights of land which is a difficult, protracted process, which was challenging to apply principles and enforce the law.

Support systems especially legal advice was not sufficient and that aspect was still being worked on.

Illegal occupations were condemned by the Commission. People were told to work through the process of the law and not simply occupy land. These people will be dealt with through the law.

Affidavids, Identity documentation problems were being resolved already using service providers, establishing that the rightful claimants were being dealt with. The IEC was aiding the process.

Municipality financial constraints would be approached at the end of the financial year for planning sessions. In the meantime, Department of Housing would have to assist the municipality with support. He acknowledged that it was difficult to get concrete support in every area.

With regard to the farmers, he acknowledged that there certainly were co-operative farmers. Just that the non-co-operative farmers were very difficult to deal with. One farmer recently became a strategic partner in the land and he was willing to put in R30 Million in the process and willing to mentor the current owners as well.

He stated that the current landowners were not informed immediately. It was first established that the claim was legitimate before the current owners were informed.

Mr M Mokono (RLCC-Limpopo) stated that the Patfontein capacity issues were being addressed.

One issues dealt with was sharing the land between Tsonga and Venda who are both entitled to the land but since Apartheid are alien cultures to each other. How was this land to be separated?


The Chairperson summarised what was said and brought up the next item of the agenda.

Restitution of Land Rights Amendment Bill [B42-2003]


The Commissioner outlined the purpose of the Amendment, the amendment and the limitations of the current legislation.

The Inadequacies of the current legislation included 'no need to get agreement of all parties before expropriation Emphasis was placed on the Minister of Land Affairs having the same powers as the minister of Public Works, to expropriate for land reform purposes.

Discussion
Mr Botha (DA) was keen to know the rationale behind the proposed amendment. He noted that the original reason for the restitution act was to serve the public good but this instead challenges the public good. A Minister cannot serve as a judge and compromise public good. He also noted that if the budget was low then there would be no need for expropriation. He also wondered whether it was worth it considering all the time it takes. What percentage of land needed to be expropriated.

Mr Maluleke suggested that the international domain law of expropriation was for the public good only. These public goods referred to schools, roads. However if the Minister was allowed to use the expropriation law then if would serve only one group not the public good. He expressed concern over the limitations of this amendment for the wider public and also enquired whether governments elsewhere had used this rule.

Mr Bishop stated that committee members should not use historical problems as a basis for stirring up legal complications simply to frustrate the issue. Expropriation was for good purpose and that checks and balances may be built in so as to ensure the prupose of the amendment and protect any other communities from suffering. Being a national issue, balances would naturally be brought in. He advised committee members to obstruct but only in good faith.

Ms Mantole requestd copies of the Acts that the Commissioner had referred to in this discussion regarding the amendment. She noted that the amendment was long overdue and that the matter should be resolved as soon as possible.

The Chairperson indicated that the Committee Secretary would avail the Acts to all members.

Mr Van Niekerk stated that this Amendment seem to be reverting to Apartheid days were the power had shifted from the rule of law to the rule of government. He was greatly concerned about this.

Ms Mantole questioned whose law it was.

Mr Ngema wondered about the relationship between the court and the minister regarding this matter. Without disabling the minister, he wondered whether it was possible to mediate this problem elsewhere and not in the ranks of the Minister.

Dr Schoeman enquired why laws had to be changed to facilitate the process.

Mr Nefolovhodwe stated that another meeting was to be held later on, where the act was to be accepted or not. He noted vehemently that international law was not applicable in South Africa and if that was the case then it should have been applicable during the days of apartheid.

Mr Maluleke said that he was referring to domain law and not international law and that Mr Nefolovhodwe should be called to order.

The Chairperson called Mr Nefolovhodwe to order.

Mr Abrams stated that there was a mandate to carry out and that was what the provisions had to be based on. He noted that the amendment had still to be fine combed. This amendment was not to dispossess land from rightful owners but rather was in accordance with the purpose and the rational of the bill. He also noted that the law would only be used if all else failed.

Commissioner's Response
Mr Gwanya stated that expropriation was to be taken on within a context in accordance with the constitution. At the moment the real issues were being delayed and that ongoing court delays initiated by farmers who had the money was not adding value to the process and to the good intention.

He stated that the legislature would not be used arbitrarily but that on the odd occasion this rule would be useful in dealing with protracted matters. Unfortunately, at this point the Minister could not aid the situation. Twenty-seven cases of the 36 000 demand expropriation and this turned out to be a long winded protracted process.

He noted that this matter was not new to this country. Previously, expropriation was used unfairly. He referred to the land expropriated in the homelands. This was not a public good and did affect the actual population. This was not going to happen again.

Mr T Seheke (RLCC Legal Officer) stated that expropriation was not to be used without limitations. It was to be used with regard to restitution only. He noted that one of the challenges that faced was an ongoing expensive negotiation which had no end and no resolution. It was for these matters that the Amendment Bill was to be used.

Mr B Mphela (RLCC North West & Gauteng) stated that the situation was not going to get as volatile as the Zimbabwean situation but that Government intervention was necessary to resolve certain matters only.

Mr T Seheke (RLCC Legal Officer) stated that the landowners went on appealing after they had lost the cases at the local courts.

Mr S Lefafa (Deed Registrar, Pretoria) stated that nothing took away the jurisdiction of the Courts. During Apartheid parliament was above the courts but now it was reversed. This amendment was not a subconscious or unconscious means of usurping the powers of the court. The amendment was not a shift in the rule of law. The Constitution itself puts forward land reform as an important public interest and this matter had to be dealt with swiftly and efficiently. He noted the distinction between restitution and redistribution. He also emphasized that this process was within a market related context and that measures taken had to be in accordance with that.

The Chairperson stated that he was concerned as to why there was not alternate pieces of legislature to deal with this matter. He noted that the matter could be dealt with again on the 25 and 26 of August 2003. In the meantime the department of Agriculture had not come back to him regarding the invitation to Durban the following week. The minutes were not sent out in the previous week, but the Committee secretary would deal with that matter shortly.

The meeting was adjourned.