Restitution of Land Rights Amendment Bill: hearing

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Meeting report

AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
26 August 2003
RESTITUTION OF LAND RIGHTS AMENDMENT BILL: HEARINGS



Chairperson: Mr. Masithela

Documents handed out:
Legal Resources Centre Comment on Restitution Land Of Rights Amendment Bill (Appendix 1)
COSATU Submission on The Restitution Of Land Rights Amendment Bill (Appendix 2)
National Land Committee's Submission (Appendix 3)
Surplus People Project Submission on Restitution Of Land Rights Amendment Bill (Appendix 3)
Reitpoort Independent Development Trust (Appendix 4)

Restitution of Land Rights Amendment Bill [B42-2003]

SUMMARY
All presenters supported the Land Rights Amendment Bill and the provision of land expropriation other than for the purpose of restitution. They were however concerned that there were limited resources for the process of land restitution. Members asked how the presenters foresaw the process unfolding and how their organisations would take part in the process.

MINUTES
Legal Resources Centre Submission

Mr Pienaar, Director of the Legal Resources Centre, presented the submission. He centred his presentation on the fact that Section 25 of the Constitution obliged Parliament to deal with land rights and land distribution. He argued that the Restitution Act should be amended in way that will satisfy the provisions of the Constitution. The Act should give the Minister additional expropriation powers to expedite the process of land restitution.

Discussion
Mr. Botha (DA) asked if it was documented anywhere that the Minister had power to determine the validity of deeds.

Mr Pienaar said that the validity of deeds could be determined at the deeds office.

Mr. Botha (DA) asked if the amendments would not be threatening security of tenure.

Mr Pienaar said that even though expropriation was constitutional there were provisions for challenging expropriation in court.

Mr. McIntosh (DA) observed that there was lack of capacity in dealing with land restitution at local level as exemplified by the Land Commission. He asked if expropriation was not an easy way out.

Mr. Pienaar disagreed that it was an easy way out. There was need to increase budget for more resources and personnel even in this process of expropriation.

Dr Schoeman (ANC) reckoned that the Bill was open ended because it stated that it did not specify only land restitution, instead it also includes the words "other land reforms".

Mr. Pienaar explained that such provision should be made to accommodate cases in which land expropriated for restitution may be suitable for other unintended purposed.

Dr. Schoeman (ANC) asked if the Minister was not supposed to exhaust all possible ways of land restitution before expropriation.

Mr. Pienaar agreed and explained that the Minister would not expropriate land without satisfactory information and alternative processes.
Agric SA Submission
Mr Makhalala presented on behalf of Agric SA. His organisation supported the Bill on the basis of eradicating poverty. Poor people should have access to land and that the legacy of dispossession called for a speedy expropriation of land. White farmers and municipalities were not willing to help poor people to access land. It was ridiculous for government to base land rights on title deeds because "who gave title deeds to settlers and colonialists?"

Discussion
One member asked what Agric SA was doing in helping poor people.

Mr. Abram (ANC) also asked if Agric SA represented people or just selling equipment.

Mr Makhalala said that his organisation was involved in agricultural projects. The pace of progress was frustrated by the unwillingness of white commercial farmers and the municipalities.

Surplus People Project Submission
Mr. Mayson presented on behalf of the Surplus People Project. His organisation fully supported the Minister having powers to expropriate land for restitution. The issue was to balance expediency and constitutionality and also to try to deal with the hurdles of uncooperative white commercial farmers. There was limited budget for the process and that made it seem that the government was not very much committed to the process. (Refer to Appendix 3)

Discussion
One member (ANC) asked what Mr Mayson thought about the view that the Bill gave the Minister too much power and that the Bill was against white commercial farmers. Mr. Mayson said that the Bill did not give the Minister discretionary or unlimited powers. Rather it provided for alternative processes prior to expropriation. He said that the Bill was not against white farmers but rather a necessity.

One member asked how Mr. Mayson hoped the Bill could expedite the process. Mr Mayson said that the process could be expedited only if the procedures were not prolonged.

One member asked if the Bill should not be used as the last resort. Mr Mayson reiterated that there were alternative procedures prior to expropriation and that expropriation could be contested in court.

Mr. Botha asked for the percentage of farmers who did not want to sell. Mr Mayson said that he had no idea and that there was research in progress to answer the question.

Ms Ntuli (ANC) asked Mr Mayson to explain what he meant by capacity in his submission. Mr Mayson said that he meant project management skills, business skills and other administrative skills.

Ms Ntuli (ANC) asked if Mr. Mayson agreed that black farmers would be unproductive. Mr. Mayson said that the issue was not race but rather resources, planning and money.

Mr. Maluleke (DA) asked what the Surplus People Project did when they found out that farmers did not want to sell their land. Mr Mayson said that they did nothing and that the issue was being further researched.

Rietpoort Independent Development Trust
Afrikaans Presentation - Please refer to Appendix 3

Boarder Rural Committee Presentation
Mr Westway, the Director of Boarder Rural Committee said that his organisation supported the Bill. The process should quantify the number of affected communities. Moreover he added that the Bill should also consider those who were not making claims and that was why his organisation was working with villages on how to take the process forward. He also listed some of the work that his organisation was doing in assisting rural people to benefit from the land and the process of redistributing it.

Discussion
Dr Schoeman (ANC) asked how Mr. Westway envisaged the idea of betterment by his organisation. Mr. Westway said that he meant alternative methods of redistribution such as development led redistribution.

Mr. McIntosh (DA) asked what people at grassroots level said they wanted. Mr. Westway said that he did not know what they individually wanted. He said that his organisation simply wanted the right to distribution and to give people options and facilitate informed decision-making.

Mr Nefolovhodwe (AZAPO) asked if Mr Westway was advocating for a change in direction or just amending the Act. Mr Westway said that their position was a rights- based approach to land redistribution.

Ms Ntuli (ANC) asked if the Bill could solve the legacy of dispossession in former Bantustans. Mr Westway said that he was no vested to answer the question, but that he agreed in principle that the legacy should be ended.

COSATU Submission
The Legal Co-ordinator, Ms Govender, made the submission. COSATU supported the amendment to expedite the process of land restitution in the light of the slow pace and obstacles. COSATU supported the expropriation of land for purposes other than restitution. However, COSATU was weary about implementation and asking the Department to clarify the implementation processes. COSATU was also not happy about the limited budget for the process and also about inequalities in budget allocations for different land reform programmes.

Discussion
Mr D Dlali (ANC) asked for Cosatu's comment on the resource and capacity shortage within the Department.

Ms Govender Cosatu Legal Co-ordinator, said they would like to see adequate funding be allocated for the various functions required to ensure restitution is properly affected.

She added the department was currently not optimally utilising its powers to expropriate land for restitution. Cosatu would like to see a strategy with timeframes outlined to ensure accountability.

National Land Committee Submission
The National Land Committee was unhappy that the Proposed Amendments dated 22 July 2003 which gave the Minster powers to expropriate with or without a court order, were excluded from the draft discussed during the Public Hearings.

Dr A Schoeman (ANC) said the Transvaal Agricultural Union was not able to defend itself due to its absence and therefore Ms Kgwadi should refrain from debating their submissions. He asked whether in her opinion expropriation was envisaged for wider uses than land restitution.

Ms Kgwadi said the NLC had no legal position on amendments made, but they did not oppose the wider powers given to the minister to resolve land restitution disputes.

Dr Schoeman asked for clarity on the apparent contradiction in the NLC submission that they believed the bill was watered down yet they later commend the minister for tabling it.

Ms Kgwadi said the change in the preamble was 'very problematic' for the NLC, she said they had a sense the government was backing down as result of threats made by agricultural organisations.

Mr G Macintosh DA said in the Duku Duku case the commission dismissed a land claim only to have the decision overturned by the courts, he asked for the NLC view on courts judging land restitution disputes.

Ms Kgwadi said the NLC supported the right of access to courts of both landowners and claimants.

Ms J Ntuli (ANC) asked whether Ms Kgwadi thought the Bill was worth implementing despite the stated NLC reservations.

Ms Kgwadi said they did not think the whole Bill was watered down but would have preferred to have a previously stated clause included.

Ms Ntuli asked Ms Kgwadi's view on the argument that 'black people had land in the homelands and they don't need more.'

Ms Kgwadi said she believed it an insult to people currently awaiting land restitution, to make statements of such a nature.

Mr D Dlali asked for clarity on the apparent contradiction between the NLC support for the court system as an arbiter in land restitution and their view that the courts were not a viable means of resolving land restitution disputes.

Ms Kgwadi said the courts were not a viable option to settle claims especially if the 2005 deadline was to be adhered to.

The meeting was adjourned.

Appendix 1
Legal Resources Centre comment on:
purchase, acquire in any other manner or expropriate land, a portion of land or a right in land for the purpose of the restoring or awarding such land, portion of land or right in land to a claimant in terms of this Act or for any other land reform purpose.

 

1. A preliminary point concerning the reference to Section 6(2)(b) of the Restitution Act:

1.1 From the Memorandum as published in support of [B42 - 2003] we understand that the Minister needs the supplementary power to expropriate land for the purposes of Section 6(2)(b) of the Restitution of Land Rights Act.

In this regard the Memorandum notes that:

"A further problem which arises from the current provisions of the Restitution Act is that although the land may originally be intended for restitution purposes subsequent events may indicate that the land should rather be used for other land reform purposes. This is provided for in section 6(2)(b) of the Restitution Act."

1.2 Section 6(2)(b), does however not cover the problem as explained. It merely notes that:

"The Commission may, at a meeting or through the Chief Land Claims Commissioner, a regional land claims commissioner or a person designated by any such commissioner make - . .

(b) recommendations or give advice to the Minister regarding the most appropriate form of alternative relief, if any, for those claimants who do not qualify for the restitution of rights in land in terms of this Act;"

    1. The intention of Section 6(2)(b) is that the Minister (and not the Commission) needs to decide on assisting a "claimant" in terms of other land reform programmes and other legislation. Legislation to support other land reform programmes does make provision for expropriation.
    2. The Provision of Land and Assistance Act No 126 of 1993 (which is the legal mechanism for the redistribution programme) and in the Extension of Security of Tenure Act No 62 of 1997 (ESTA) provide powers for the expropriation of land for land reform purposes.
    3. If the existing powers for the expropriation of land for reform purposes are inadequate for the purposes of Section 6(2)(b) (which is not necessarily so, and not motivated in the memorandum attached to the Bill), they should be supplemented in other legislation and not in the Restitution Act. The Land and Assistance Act should be amended or the required amendments could be appropriately contained in a Land Reform Laws Amendment Act, which could contain a free-standing provision to that effect.

2 Regarding "or for any other land reform purpose":

The additional general expropriation provision "for any other land reform purpose" in the Restitution of Land Rights Act may cause confusion with regard to the law that needs to be used, and its requirements, and with regard to the Court that will have jurisdiction to adjudicate the matter.

    1. Apart from the issues concerning section 6(2)(b), a situation can be envisaged where the portion of land that needs to be expropriated for restitution purposes may form part of a larger piece of land and that the Minister in terms of the Restitution Act (at present) only has the powers to expropriate a smaller and undivided portion which may not be feasible, and for such purposes, she may wish to expropriate the additional portion which has not been claimed. Under such circumstances she does not have the power to expropriate such additional land in terms of the Restitution Act and she will not have it in terms of the "specific" provision of the Bill for "the purpose of the restoring or awarding such land." It would appear that she does therefore need wider powers in terms of the Restitution Act (bearing in mind that she already has powers to expropriate for redistribution and tenure reform purposes in Act 126).
    2. A further situation may be envisaged where a portion of land was earmarked, but subsequently it becomes clear that the claimed land will be wholly inappropriate and more appropriate piece of private land is then earmarked. The alternative piece of private land is not subject to a claim and can then only be acquired if it is expropriated. In this regard the Minister may need additional powers to expropriate in the Restitution Act (but again bearing in mind that she does have the powers as noted in Act 126).
    3. While the Minister may need additional powers to expropriate land under such circumstances in the Restitution Act, care needs to be taken to ensure that such powers are aligned with similar powers in terms of which she may also expropriate land for "other land reform purposes".
    4. As the amendment stands, it does not provide criteria or a test which links the "general power" to expropriate "for any other land reform purpose" to the restitution process.
    5. The amendment needs to clearly link the "general power" to the restitution process. It concerns process (such as planning and the appropriation of budgets) and a legislative tests (for instance the 'Minister needs to be satisfied that . .' ) to trigger the expropriation action. It also, in this case concerns the jurisdiction of the court that needs to decide the matter if it is contested.

       

       

       

       

    6. The Act if amended as proposed, will then stand as is, without any explanation, test or procedure. It will then be possible to use the "general" provision of the Restitution Act to expropriate (not only for purposes linked to restitution) but for "any other land reform purpose", despite the fact that, as referred to above, provision is already made for expropriation in terms of existing legislation.
    7. The general and undefined provision is therefore bound to cause confusion and unnecessary litigation (whether "and" or "or" is used). It would appear that the drafters did not take this into account
    8. The Land and Assistance Act and ESTA require different tests and different procedures for land to be expropriated for land reform purposes. It is not clear when or why a particular legislative route as opposed to the other routes may be used. Creating multiple powers of expropriation for the same purpose may lead to confusion as to which Act has been used, or should be used, in particular cases.
    9. Expropriation for redistribution purposes in terms of the Land and Assistance Act must be adjudicated on by the High Court. Expropriation in terms of the Restitution of Land Rights Act must be adjudicated in the Land Claims Court. By providing different courts of the same standing with similar powers to adjudicate on a similar issue is bound to cause confusion about which court will have jurisdiction.
    10. The exercise of all powers under the Restitution Act is subject to review by the Land Claims Court (sec 36(2)). If an expropriation for redistribution or tenure reform done in terms of the proposed "general" provision of the Restitution Bill, disputes about those expropriations will be heard in the Land Claims Court.
    11. From the memorandum it is clear that the "general" expropriation powers is not required to supplement the already existing powers for expropriation for land reform purposes, but the amendment itself needs to make this clear to avoid confusion.

 

3. Regarding the motivation that it is "imperative that the the process of settling rural claims be accelerated."

The hope that the amendment will have the effect of accelerating rural claims, as referred to in the Memorandum, may not be well founded.

    1. The Minister will have to give the owner notice and a fair hearing before effecting an expropriation.
    2. The owner will be entitled to full reasons for the proposed expropriation, and the factual basis for the proposed decision, before the Minister is able to expropriate.
    3. Particular care will have to be taken to place full and accurate information before the Minister - and the owner will be entitled to this information before a decision is made. A decision to expropriate based on incorrect or inadequate information may, in the light of a recent decision of the Supreme Court of Appeal, be invalid.
    4. The owner will be entitled to take the decision of the Minister on review in the Land Claims Court (as provided for in section 36), and will for the purposes of the review probably be entitled to challenge the validity of the claim.
    5. The claim will therefore have to comply with the section 2 validity requirements of the Act.
    6. The owner will be entitled to challenge the Minister's decision on the basis of the validity of the claim. Due to the rights that owners have to challenge a Minister's decision to expropriate, the expropriation route may cause the process to become even more protracted. For that reason too much hope should not be placed on acceleration due to wider powers to expropriate.
    7. We believe that the only way to speed up the restitution is to make adequate staff and capacity available to the DLA and the Commission.

Legal Resources Centre

19 August 2003: ref:

 

Annexure: PROVISIONS CONCERNING EXPROPRIATION:

[SAPL4][a62y1997]

EXTENSION OF SECURITY OF TENURE ACT 62 of 1997[/SAPL4]

:

[a62y1997s26]

26(1) Without derogating from the powers that a Minister may exercise under the Expropriation Act, 1975 (Act 63 of 1975), the Minister may for the purposes of any development in terms of this Act, exercise equivalent powers to the powers that such other Minister may exercise under the Expropriation Act, 1975.

(2) Notwithstanding the provisions of the Expropriation Act, 1975, the owner of the land in question shall be given a hearing before any land is expropriated for a development in terms of this Act.

(3) In the event of expropriation, compensation shall be paid as prescribed by the Constitution, with due regard to the provisions of section 12 (3), (4) and (5) of the Expropriation Act, 1975.

(4) Any right in land which derives from the provisions of this Act will be capable of expropriation in accordance with the provisions of any applicable legislation.

PROVISION OF LAND AND ASSISTANCE ACT 126 OF 1993

 

[a126y1993s12]12(1) Without derogating from the powers that a Minister may exercise under the Expropriation Act, 1975 (Act 63 of 1975), the Minister may for the purposes of this Act, exercise equivalent powers to the powers that such other Minister may exercise under the Expropriation Act, 1975.

(2) Notwithstanding the provisions of the Expropriation Act, 1975, the owner of the land in question shall be given a hearing before any land is expropriated in terms of this Act.

(3) In the event of expropriation, compensation shall be paid as prescribed by the Constitution, with due regard to the provisions of section 12 (3), (4) and (5) of the Expropriation Act, 1975.

(4) Any right in land which derives from the provisions of this Act will be capable of expropriation in accordance with the provisions of any applicable legislation.

[S. 12 substituted by s. 7 of Act 26 of 1998.]




Appendix 2
COSATU Submission on the Draft Restitution of Land Rights Amendment Bill

Introduction

The Restitution of Land Rights Act was passed in 1994 to address the restitution of those rights in land that were dispossessed after 19 June 1913 as a result of apartheid laws. Since then various amendments have been made to the principal Act to address the obstacles to the restitution process. The amendments made in 19991 were seen as key in that they enabled the Department to employ an administrative route to settle restitution claims rather than being forced to go through a judicial route, thereby speeding up the process.

Despite this the land restitution process has not taken place at an optimal pace, raising serious questions about whether all claims will be settled in time to meet the 2005 deadline set down by the President. Further concerns have been levelled at the overwhelming urban bias in the number of claims settled as well as the failure to address the principle of sustainable settlements that would enable beneficiaries to use the land productively in the long term.2

Underlying these problems is the adoption by the Department of the "willing buyer-willing seller" approach to restitution, which has enabled many current landowners to hold up the process either because they are generally opposed to the restitution process or demand unreasonably high prices. This combined with similar problems experienced in other land reform areas such as tenure reform and land redistribution only serve to confirm earlier fears that the inclusion of the property clause in the final Constitution would obstruct land restitution and reform processes, thereby entrenching existing patterns of unequal property relations.3

The Restitution of Land Rights Amendment Bill (hereafter the Bill) proposes to

remove the requirement for the Minister to first reach an agreement with interested parties or obtain a court order before expropriating or acquiring property. The aim of the proposed amendments is to address obstacles that delay the restitution process.

COSATU strongly believes that there is a need for a meaningful intervention to speed up not only land restitution but the other two legs of the land reform process, viz tenure reform and redistribution. This would necessarily entail increased utilisation of powers of expropriation especially where blockages arise. It is with this objective in mind that we support the introduction of the Bill.

Notwithstanding our support for the Bill, we believe that there are a number of additional policy concerns that must be addressed. These include:

Inadequate prioritisation of implementation of other programmes of land reform viz tenure reform and land redistribution;

Insufficient budget provision for the overall land reform process and more specifically for tenure reform and redistribution;

Little or no provision for support mechanisms (including support by personnel, provision of appropriate infrastructure and access to credit etc), which would enable the sustainable and productive use of land by beneficiaries.

These additional concerns may appear on the surface to fall outside this process. However, it is important that these are addressed in order to maintain the integrity of the entire land reform process in the long term. While not detracting from the importance of the land restitution process, its limited potential for reversing racially skewed property relations must be borne in mind. Restitution is limited to only those whose rights were dispossessed after 1913 and who unable to lodge their claims by the deadline of 1998. Many others who would otherwise have qualified for restitution are now dependent on tenure reform and redistribution programme for appropriate redress.

2 Constitutional and Legal Considerations

The Bill sparked off widespread controversy particularly amongst opposition parties who argued that it was an "assault on the rule of law and property rights' as well as raising constitutional concerns.4

Clause 4, which is the key provision in the Bill, proposes to insert a new section 42E into the principal Act. The proposed subsection 42E(1) provides the Minister with the power to acquire or expropriate land or rights therein for the purposes of restitution or "any other land reform purpose". Provision is made for the application of the Expropriation Act 63.of 1975 to land restitution, with references to the Minister of Public Works to be construed as the Minister of Agriculture and Land Affairs. Expropriation is made subject to the payment of compensation that is to be determined either by agreement or by the Court in accordance with section 25(3) of the Constitution. Other clauses in the Bill remove references in the Act, which make it necessary to reach agreement or obtain a court order before expropriating land. This means in the future the Minister will not need to reach an agreement with the relevant landowner or obtain a court order in order to expropriate property.

Our analysis of the provisions in the Bill indicates that criticisms of the Bill on constitutional or legal grounds are unfounded. In the first instance section 25(2) of the Constitution allows for property to be expropriated in terms of law of general application for a public purpose or in the public interest, which includes land reform measures. This is made subject to the payment of compensation that complies with a number of factors listed under section 25(3). As the Bill complies with all of these requirements, there are no grounds to justify concerns about constitutionality.

Secondly the Department already has similar powers of expropriation in terms of the Expropriation Act and land reform legislation such as the Extension of Security of Tenure Act 62 of 1997(ESTA). The criticisms levelled at the Bill are merely reflective of Conservative mindsets resistant to the process of transformation of unequal distribution of property in South Africa, and should therefore not be allowed to undermine the delivery of land reform objectives.

2.1 Implications for "Other" Land Reform Purposes

As noted above the Bill provides for expropriation for "other" land reform purposes, which would include tenure reform and redistribution.

As with restitution, acquisition of land for the purposes of securing tenure or redistribution has been held up by resistant landowners. Accordingly we believe that the inclusion of this provision in the Bill should be supported if this will have the effect of speeding land reform more generally.

Taking into account our concerns noted about the poor emphasis placed on tenure security and redistribution, we are calling on the Department to prioritise its implementation of this provision.

2.2 Concerns about Implementation

Notwithstanding our support for the Bill, we are concerned about the possibility that the Bill may be under utilised once passed. In this respect criticisms have been levelled at the Department's past reluctance to use its existing powers of expropriation.5 Accordingly, we are calling on the Department to clarify its proposed strategy for implementing the Bill and specifically how delays are to be addressed through the amendments.

Currently the Department is required to obtain a court order BEFORE expropriating in the case that a landowner refuses to sell. With the introduction of the proposed amendments landowners will have the opportunity to challenge the process or compensation offered after the expropriation has taken place. The net effect of the amendments is that the court process will be relocated to a later phase of the process and will now be triggered by the landowner and not the Department, as is currently the case. In view of this it is unclear how this will materially address the delays currently experienced, especially since any court process will have to be finalised before the land/property can be transferred to the claimant.

Further, taking into account that there are the existing provisions authorising expropriation in other legislation noted above, there is a need to clarify firstly the net effect of the proposed amendments and how this improves the current situation. Secondly there is need to clarify how potential contradictions are to be resolved between the different pieces of legislation.

3 The Implications of the Land Reform Budget

It is a commonly accepted view that the budget provision for the overall land reform process has been far too little to sustain relevant programmes undertaken by the Department. This despite more recent marked increases allocated for Land Affairs for the years 2002/03 and 2003/04. Key concerns here relate to the inadequate provision for support mechanisms that ensure the sustainability and quality of restitution settlements and the failure to prioritise -tenure reform and redistribution programmes.

3.1Sustainability of Settlements

We believe that the considerable increases in the allocations for restitution is to be welcomed. However, the Commission has indicated that these increases are likely to be inadequate.7 Further, we are concerned that these increases are primarily limited to the settlement of restitution claims in order to meet the 2005 presidential deadline, while not addressing the sustainability of settlements. The Commission on Restitution of Land Rights (CRLR) has admitted in this respect that in order to meet this deadline the principle of sustainability and quality of settlements has received less priority.8 In the long term this is likely to compromise the ability of beneficiaries to derive the full benefit from restitution.

Accordingly there is dire need for the provision of adequate funding in order to address such concerns as staffing shortfalls both at national and provincial

levels, infrastructure development and access to credit for beneficiaries.9

3.2 Poor Emphasis on tenure reform and redistribution

Further, the overall figures mask the considerable disparities between different allocations for the various land reform programmes. As we have already indicated tenure reform and redistribution programmes are vital to addressing racially-skewed patterns of property ownership. However, the failure to make appropriate allocations in respect of the budget brings into question the priority that this enjoys within the context of land reform.

For instance the estimate for expenditure on land restitution for 2003/04 is R854.9 million, which represents an approximate 118% increase from the

R391 .3 million for 2002/03. In contrast the 2003/04 allocation for land reform

(Comprising both tenure reform and redistribution programmes) which is R430.4 million, represents a mere 7% increase on R402.2 million for 2002/03.10 It is of concern that these amounts reflect considerable disparities both in respect of the actual allocations and the annual increases.

Current Departmental targets commits the redistribution of 30% of agricultural land over 15 years. This would require the government to transfer 1.67 million hectares (mha) per annum. However, the Department's performance in this respect reflected a transfer of an average of only 150 000 hectares per annum for the period ending October 2001. According to our estimates an allocation of at least R1 .6 billion a year would be required to meet the 15-year target of redistributing 30% of agricultural land available.11 However, the estimates for the medium term do not come close to approaching this figure, with the 2005/06 estimate for land reform being R523.1 million.

Appendix 3
 

RESTITUTION OF LAND RIGHTS AMENDMENT BILL

The National Land Committee (NLC) - a national network of 10 land rights civil society organisations assisting poor and landless people struggling to access land reform across the country - strongly supports the amendments as contained in the Initial draft of the Restitution of Land Rights Amendments Bill dated 22 July 2003 which we believe was going to be an effective and efficient mechanism in to deal with the current problems that the restitution process faces.

The NLC is totally shocked and disappointed with the reversal of the provisions of the amendments as contained in the Proposed Amendments dated 22 July 2003 which gave the Minster powers to expropriate with or without a court order. We believe that this reversal does not take us away from where we were before.

Amongst others, our reasons for supporting the initial draft included the following:

The proposed amendment. as contained in the Restitution of Land Rights Amendment Bill of 2003, marks the first tangible statutory realisation of the State's fundamental Constitutional right - contained in the Property Rights clause - to expropriate land for the purposes of transforming South Africa's racially-skewed patterns of land ownership. We believe that if properly structured these amendments remain within the guidelines of the constitution and further believe that if these amendments are fully used they can contribute to a speedy resolution of land claims and a further redistribution of land, which in the long run will be in the interests of the whole country.

The need for the amendment became clear in 2001, when the State was forced to back

down on its first attempt to expropriate land for land reform, when farmer Willem Pretorius tried to milk the Department of Land Affairs for an outrageous sum for his Lydenberg, Mpumalanga farm, which was then under claim by the victims of apartheid-era forced removals

It has also become clear that if we are to settle land claims in South Africa the government cannot be tied into having to wait for agreements to be reached with current owners. While there have been successes in settling claims administratively over the last years, this has only been where the owner has been a willing seller. As such claims are settled we will increasingly be left with those claims where the current owner is intransigent and unwilling to co-operate. Even where owners are willing to sell, they are only willing to sell at certain prices and often on certain conditions. The time involved in negotiating such settlements is also long. Without the ability to efficiently bypass such negotiations if sellers are unreasonable the government is forced to pay excessive prices or agree to conditions that they may not otherwise deem in the best interests of the claimant.

Court processes in terms of the Restitution Act have proven to be lengthy and expensive. The court is therefore not a viable option for settling claims at the scale required by public demand and the targets announced by the State President.

It is also unfortunate that in terms of the current legislation a person, simply because they currently own a certain piece of land, can go to court and argue at length about the historical validity of a certain claim. We believe that if the Commission for the Restitution of Land Rights (CRLR) has investigated and found the claim to be valid the claim should be settled and the current owner should only be entitled to go to court to argue as to whether the compensation they received was fair.

For this amendment to facilitate speed and quality of delivery the beneficiaries should be well informed about it and for this reason a publicity campaign must be undertaken soon after the enactment of the bill.

Conclusion

The NLC needs clarity as to how these amendments are going to speedup the restitution process and also an explanation of the reversal of the initial amendments.

The NLC further welcomes the attempt by the Agriculture and Land Affairs Minister Thoko Didiza for her efforts to table this critical amendment, but very disappointed with the latest developments.

Finally the NLC believes that the policy instrument of Expropriation must be extended to the whole land reform process and not restitution alone.

NATIONAL LAND COMMITTEE'S SUBMISSION

Appendix 3
 

Agriculture Portfolio Committee hearing on amendments to the

Restitution Act.

Surplus People Project submission to the Land Affairs and

1. The Surplus People Project has been involved with land issues since its inception in 1984. In the first nine years of its life it fought dispossession actions by the Apartheid regime, mostly in the Western Cape but also in the Namaqualand area of the Northern Cape. Since negotiations for a new South Africa began, the organisation has been participating in the development of policy for land reform, has facilitated the resolution of a number of land claims, has been facilitating access to land and land related resources (more than 300 000 hectares in total), while at the same time, continuing the fight against dispossession - of farm dwellers off the farms still owned by white commercial farmers (more than 120 eviction cases per year). It is with this experience that we make this contribution.

2. The Surplus People Project fully supports the Minister having powers to expropriate land for Restitution purposes and in a way that speeds up the Restitution process and does not retard it. We understand that the Minister has the powers to expropriate land for land reform purposes in terms of the Constitution, the Provision of Land and Assistance Act No 126 of 1993 and the Extension of Security of Tenure Act No 62 of 1997.. If the Commission and the Minister has found that these powers are insufficient to implement restitution, and that the powers need to be specifically identified in the Restitution Act, then we fully support it. It needs to be questioned, however, whether it is appropriate to include such powers in many different Acts or whether it is the principle Expropriation Act which should be amended to cover all the land reform situations.

3. SPP is concerned that the process of expropriation might not expedite the settlement of restitution claims but may slow the process down as a result of court challenges by current landowners. The state's power to expropriate property are constrained by the Constitution (this is important as we do not want a return to the Apartheid style dispossessions). At the same time, we do not want the restitution processes to be held up by uncooperative landowners. In this regard, it is proposed that mechanisms are sought to limit the time allowed for representations and the court s procedures regarding the act of expropriation. issues such as the resolution of the compensation and other settlement agreements with the previous landowner can proceed without the constraints of time but in the meantime the expropriation itself must not be delayed or obstructed. In this way the restitution process will not be held up by long and drawn out court battles.

4. SPP is in favour of the Minister obtaining powers to expropriate land for 'any other land reform purpose"(Section 42 E (1) of the Restitution of Land Rights Amendment Bill ). In this regard, it is important to clarify why expropriation is an important power for the Minister to be assured of. Expropriation is most often understood as a procedure that should be used by the state as a mechanism of last resort where there is reluctance by the landowner to sell or to come to an agreement on the price. SPP proposes that expropriation should be used more broadly and creatively to ensure successful and sustainable land reform projects. If, in the case of land that is to be restored to a community, for example, the planning by that community identifies that additional land adjacent to the restored land will be needed to make their land reform project (restoration) sustainable then the current land owners would be informed immediately that their land has been identified for expropriation, rather than approaching them to assess whether they are "willing sellers". In this way, expropriation comes to be used as one of a variety of mechanisms to acquire land, to ensure the success of land reform projects. This power to expropriate land "for any other land reform purpose therefore emphasises that the aim of expropriation is to develop viable and sustainable land reform projects and not just to provide restitution to those dispossessed in the past. With the passing of the amended Act, it will then be up to the creativity of the Land Claims Commission to ensure the development of sustainable land reform projects based on restitution claims.

6. There is limited budget for land reform generally. This directly indicates the low priority that land reform is given by government. Given the allocation, however, the limited land reform undertaken in South Africa to date, is also impacted on by the cost of land and this has to do with the approach of willing/buyer and seller and paying market prices for land. In negotiating a price with a willing seller, it is assumed that the prevailing market price is the lowest price that the seller would be willing to accept. In these negotiations the Constitution's compensation clause (Section. 25,c) is not used in determining the price. It is expected that invoking the compensation clause of the Constitution, or such clauses within other legislation, that the price of land will be reduced because aspects such as the subsidies that landowners previously received from the state. for example. will be discounted from the price. Expropriation, therefore, is one mechanism that may reduce the cost of land reform.

7 An important additional factor in delaying restitution in South Africa is the lack of capacity to implement the programme. While increased budget has been allocoted to the Programme in this financial year, it is clear from the Department of Land Affairs, the Land Claims Commission and civil society analyses that this remains insufficient to implement the Programme within the time constraints determined by the President. At the same time, it is clear from experience on the ground that there are limited skills and capacity within the Commission to implement creative land claims processes (and related agrarian reform developments). With the clarification of the Minister's power to expropriate land for restitution purposes, it will be important to ensure that appropriate capacity is drawn into the Commission to make an impact on the development of sustainable solutions to the land claims.

Appendix 4
 

Kommentaar Insake Restitusie van Grondregte

Rietpoort Independent Development Trust

Kortliks wil ek net my mening en misnoe˝ rakende die bo ge

Wanneer sal die eis afgehandel word?

Vir u informasie, ek is 'n direkte nasaat van die oorspronklioke eienaars Rietpoort van vaderskant, stofkraal van moederskant. Die plase (plekke) is aangrensend.

Die probleme wat daar ons in die wiele ry is as volg;

Die landbouers - klienboere kan nie tot hul potensiaal kom nie want daar is nie genoeg grond vir koring en veeboerdery doeleiendes nie. Veeboere word beperk deur distrikmunisipaliteit -Weskus tot 'n sekere getal per kleinboer. Landbougrond vir die kweek van gewasse vir dier en menslike gebruik is daar ook nie. As die genoemde plekke tot hul oorspronklike bakens gebring word sal daar wel genoeg grond, myninsiens wees.

Op die gebied van verdere ontwikkeling kyk ek na onder andere die bekomming van mineraalontginning regte. Daar bestaan 'n moontlikheid van minerale in die gebiede. Ek het persoonlik 3 jaar gelede aansoek gedoen om die mineraalontginnings regte Alles dien om die werkloosheids syfer vir die gebied (78%) te laat krimp. Die minister van Grondregte het 'n voorlegging aan haar in die verband geteken en aanbeveel aan die minister van Mineraal en Energie. Die poging word ook blokkeer, aan die anderkant moedig die regering werksepping en entrepreneurskap aan.

Ek doen'n beroep op Departement Grondsake en Mineraal en Energie, ons gemeenskap verwag nou daadwerlike stappe in die regte rigting. Ons kan nie langer agtergelaat word nie.

Interme van 6 (1) van wet 57 van 1998 het ons 'n trust vir die gemeenskappe, Rietpoort/ stofkraal gestig. (verwysing no. IT 1805/2003) dit sal as 'n Gemeenskap Ontwikkelings Trust bekend staan wat voortaan na projekte binne die genoemde gebiede sal kyk.

 

noemde saak uiter. Daar is 'n restitusie eis vir Rietpoort en Stofkraal ingedien. Die transformasie proses soos aangedui in wet 94 van 1998 is aan die gang. Nog nooit is die werklike entitute in die betrokke plekke gekonsulteer nie. Ek is in besit van die oorspronklike titelaktes van die plekke Rietpoort en Stokraal, ek sluit gedeeltes hiervan in (aangeheg)

 

 

On 17 June 2003 the LRC submitted comments to the Chief Land Claims Commissioner to the Bill as published in the Government Gazette on 9 May 2003 (Notice 1331 of 2003 in the GG No. 24823).

An amended Bill was thereafter published in the Government Gazette of 25 July 2003 as a notice of intention to introduce the Bill into Parliament (Notice No. 1991 of 2003: GG No. 25217 but without a "[B - ]" reference number).

Shortly thereafter the further version of the Bill was published on the Internet as [B42 - 2003].

The Chief Land Claims Commissioner has also circulated a further and amended Draft, which includes amendments proposed by the Department of Land Affairs pursuant to a Cabinet Committee recommendation of 22 July and as, certified by the State Law Advisor on 29 July 2003.

It needs to be noted that the Memorandum attached to the Bill as published in the Government Gazette of 25 July also differs from the one as published on the Internet.

The latest proposed clause 42E published as [B42 - 2003] reads as follows:

 

COMMENT:

42E. (1) The Minister may,

kobus@lrc.org.za

 

THE RESTITUTION OF LAND RIGHTS AMENDMENT BILL

19 August 2003

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